UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


A 
PRACTICAL  TREATISE 


^bstha-Cts 


EXAMINATIONS  OF  TITLE 


REAL  TROPERTY. 


GEORGE    W.  WAKVELI.E, 

ACTnOU    OF    A    TUEATlSE    ON    VKNDe.U    A.NU    I'fUClI ASLR,    tTO. 


SECOND    EDITION. 


ru\r\r,0: 

C  A  L  r,  A  r;  II  A  \    A  N  U    C  O  M  I'  A  N  Y 

IH'JJ. 


Entered  According  to  Act  of  Congress,  in  the  year  1883, 

By  GEORGE  W.  WARVELLE, 

In  the  Office  of  tho  Librarian  of  Congress,  at  Washington. 


Entered  According  to  Act  of  Congiess,  in  the  year  1892, 

By  GEORGE  W.  WARVELLE, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


Printed  and  Stereotyped 

by  the 

Chicago  Legal  News  Corrpany. 


TO 

HON.  JOSEPH  M.  BAILEY, 

ONE    OF   THE    JUSTICES    OF    THE    SUPREME    COURT    OF   THE    STATE 

OF    ILLINOIS,  THIS    VOLUME    IS    INSCEIBED,  AS 

A   TRIBUTE    OF    RESPECT    BY 

THE  AUTHOR 


'77V>i)i:7 


rrvEFACE. 


In  presenting  a  second  edition  of  tliis  work  I  have  made 
no  change  in  the  method  of  arrangement  or  general  treat- 
ment pui-sued  in  the  first  edition.  The  text  has  been  en- 
larged by  the  introchiction  of  a  few  new  to})ics  and  a  more 
extended  discussion  of  old  ones  and  a  number  of  additional 
practical  forms  have  been  incorporated.  In  res]ionse  to 
suggestions  from  the  bar,  a  series  of  tables  of  American  land 
measures  will  be  found  in  the  appendix,  a  feature  which  I 
am  induced  to  believe  will  be  of  great  practical  utility  to 
attorneys  in  the  examination  of  abstracts.  The  remarkal)le 
success  which  has  attended  the  first  edition  emboldens  me 
to  hope  that  this  revision  will  find  equal  favor  with  the  pro- 
fession, and  that  in  the  ]iractical  work  of  the  demonstration 
of  titles  it  may  be  found  a  heli)rul  assistant. 

G.  W.  W. 

CuicAGO,  Dec.  7,  1892. 


(V) 


TREFACE  TO  FIRST  EDITION. 


I  have  no  apology  to  make  for  the  appearance  of  this 
book,  but  a  word  or  two  of  expkxnation  may  be  in  order. 

The  subject  which  I  have  here  undertaken  to  elaborate, 
is  new  to  the  legal  literature  of  the  United  States,  although 
abstracts  of  title  have  long  been  employed  by  the  i)rofession 
in  all  matters  pertaining  to  title  of  real  property.  But  with 
each  successive  year  it  has  assumed  vaster  proportions,  and, 
as  the  country  continued  steadily  to  develop,  it  has  gradu- 
ally been  shaping  itself  into  a  distinct  branch  of  legal  science, 
that  calls  for  a  high  degree  of  technical  skill  and  special 
learning.  And  this  has  reference  both  to  conveyancers  and 
lawyers;  the  one  to  properly  and  systematically  compile, 
and  the  other  to  interpret,  the  evidences  of  title  which  go 
to  su})port  claims  of  ownership  in  land. 

Ko  American  author  has  heretofore  seen  fit  to  epitomize, 
for  the  special  use  of  conveyancers  and  the  legal  ])rofessi()n, 
the  questions  of  law  which  arise  during  the  perusal  of  an 
abstract,  or  to  direct  the  attention  of  either  class  toward  a 
S3'stematic  method  of  presenting  those  questions.  Eminent 
writers  on  real  property  have  passed  the  subject  in  silence, 
and  the  few  American  writers  on  conveyancing,  who  have 
heretofore  ventured  to  touch  upon  it,  have  dismissed  it  Avith 
tlie  fewest  possible  words,  and,  as  a  rule,  whatever  remarks 
they  may  liave  made  were  usually  but  servile  echoes  of  En- 
glish writers. 

Several  works,  of  more  than  ordiiiai-y  merit,  liave  aji- 
peared  in  England,  in  wiiidi  tiic  sni)ject,  fiom  an  Englisli 
standpoint,  is  very  th(M-uiiglily  and  al)ly  discussed,  but  the 

(vii) 


Vl.l  niEFACE. 

iiTcconcilable  difTorcnccs  in  our  laws  and  institutions  have 
rendered  them  couiitaraiivrly  worthless  to  the  American 
practitioner,  and  thoy  are  rarely  met  with  on  this  side  of 
the  Atlantic.  The  methods  of  English  conveyancers  and 
solicitors,  while  admirably  adapted  to  the  exigencies  of  their 
own  laws  and  customs,  and  highly  conducive  to  the  end  de- 
sired, are  but  ill  suited  to  our  wants  and  furnish  little  assist- 
ance in  tracing  the  devious  courses  of  an  American   title. 

In  view^,  tlierefore,  of  the  constantly  increasing  impor- 
tance of  abstracts  of  title,  and  the  present  inadequate  means 
of  information  concerning  the  same,  I  have  been  prompted 
to  write  this  book.  It  combines,  not  only  the  result  of  my 
own  experience,  both  in  the  preparation  of  abstracts  and  in 
passing  titles  therein  presented,  but  also  the  experience  of 
a  number  of  eminent  conve3^ancers  and  lawyers  Avliom  I 
have  freely  consulted  during  its  preparation. 

I  have  endeavored  to  give  a  general  outline  of  what  I 
consider  the  best  methods  of  compiling  the  abstract  so  as 
to  insure  the  most  satisfactory  results;  a  general  system  for 
the  arrangement  of  the  several  parts  and  formal  divisions; 
and  the  latest  approved  plans  for  presenting  the  essential 
matter  of  deeds,  instruments  and  proceedings  affecting  title 
necessary  to  be  shown.  I  have  further  made  a  few  sugges- 
tions relative  to  laying  out  and  keejiing  a  set  of  abstract 
iiulices,  the  great  utility  of  which  must  be  apparent  without 
comment.  To  reduce  the  work  within  the  smallest  allow- 
able space,  as  well  as  to  prevent  confusion,  I  have  made  but 
few  allusions  to  local  statutes,  while  the  statements  of  law 
liave  been  confined  mainly  to  broad  and  commonly  acce})ted 
doctrines.  It  is  expected  that  the  careful  practitioner  will 
be  fully  posted  on  the  laws  of  his  own  State  relative  to  de- 
scent, purchase,  etc.,  and  hence  the  rules  here  given  are  of 
general  application  only.  As  this  book  is  intended  for  the 
use  of  conveyancers,  as  well  as  for  the  legal  profession, 
it  has  been  deemed  best,  in  many  instances,  to  elucidate  only 
those  principles  which  are  elementary  in  their  nature,  and 
to  avoid  subtilties  or  extended  discussions. 

Though  this  work  is  entirely  the  result  of  my  own  per- 


PEEFACE.  IX 

sonal  labor,  I  am  iinJor  many  obligations  to  gentlemen  of 
the  bar  for  advice  and  suggestion,  and  particularly  would  I 
express  my  thanks  to  S.  M.  Henderson,  Esq.,  and  Messrs. 
Haddock,  Valletta  &  Eickcords,  of  Chicago,  for  the  very 
valuable  assistance  rendered  in  the  preparation  of  many  of 
the  forms. 

I  trust  that  my  work  may  meet  the  favor  of  the  profes- 
sion, and  be  of  real  utility  and  assistance  to  them;  that  it 
may  serve  to  assist  in  creatinsr  a  better  understandino-  be- 
tween  conveyancer  and  counsel,  by  acquainting  each  with 
the  methods  of  the  other;  and  that  it  may  be  instrumental 
in  building  up  a  symmetrical  system  of  title  abstracts  in 
this  country. 

G.  ^Y.  ^v. 

Chicago,  Sept.  1,  1SS3. 


ANALYSIS  OF  CONTENTS. 


CHAPTER  I. 

PRELIMINARY  OBSERVATION'S. 

PAGE. 

Sec.   1.     Introductory 1 

purport  of  the  work 1 

2.  Abstracts  defined 2 

3.  Origin  of   abstracts 2 

4.  Essentials  of  the  abstract 3 

5.  The  English  method 3 

6.  The  American  method 4 

7.  Abstracts  and  examinations  distinguished 5 

8.  Qualifications  of  the  examiner G 

9.  Liability  for  error 7 

implied  skill  and  knowledge 8 

necessary  conditions  to  fix  liability 8 

10.     Duty  of  furnishing  abstract 9 

vendor  to  furnish  when 10 

custody  and  ownership  of 11 

CHAPTER  n. 

TITLE  TO  REAL  PROPERTY. 

Sec.  1 .     Property  and  title  distinguished ,  12 

2.  Title,  liow  acquired 12 

by  descent 12 

by  purcliase 12 

other  distinctions i:i 

3.  Classification  of  title i:i 

lilac  kstone's  divisions i:{ 

American  divisions i;{ 

bad,  doubtful  and  perfect 1 :! 

Ii'gal  and  eijuitable 11 

4.  Source  of  title 11 

the  King 11 

the  State 11 

5.  Nature  of  title  in  the  United  Statt>8 1"» 

nil  land  hfl<l  in  alkidiiim 1~> 

BubniiKHion  to  li-gislalivu  control 1(} 

(Xi) 


XU  ANALYSIS    OF    CO>,"rEXTS. 

Soc.  PAGE. 

C.     Estates  under  allv^dial  titles IG 

foe  simple IG 

for  life 17 

for  yeai'S 17 

possession  and  expectancy 17 

reversions  and  contingencies 17 

7.  Uses  and  trusts 18 

8.  Povvei-s 19 

9.  Homesteads 20 

10.  Dower  and  curtcsj'- 22 

11.  Easements  and  servitudes 21 

12.  Tenancies 26 

13.  Color  of  title 27 

14.  Evidences  of  title 27 

15.  ^ilienation  and  descent 28 

CHAPTER  III. 

TITLE  BY   DESCENT. 

Sec.  1.    Nature  of  the  title 80 

2.  Rules  of  descent 31 

3.  Consanguinity 32 

methods  of  computation 33 

by  the  common  law 33 

by  the  civil  law. 33 

table  of  degi'ees  of  consanguinity 34 

4.  Affinity 35 

5.  Adoption 35 

6.  Proof  of  heirship 36 

7.  Pi-oof  of  death 37 

8.  Conveyances  by  heii-s 37 

CHAPTER  IV. 

TITLE  BY   PURCHASE. 

Sec.  1.     Nature  of  the  title 38 

methods  of  purchase 3U 

2.  Deed 40 

3.  Devise "...  40 

4.  Public  grant .-.  40 

5.  Estoppel 41 

6.  Teclmical  estoppel 42 

7.  Equitable  estoppel 44 

8.  Relation 46 

9.  Prescription  and  limitation 47 

10.     Accretion  and  reliction 48 

rules  for  measurement 49 


ANALYSIS    OF    CONTENTS.  Xlll 

Sec.  PAGE. 

11.  Avulsion 5(1 

12.  Riparian  titles 50 

13.  Dedication CA 

14.  Confirmation 52 

15.  Occupancy 5;^ 

16.  Abandonment 51 

17.  Eminent  domain 50 

18.  Title  acquired  by  eminent  domain 57 

19.  Escheat 58 

20.  Confiscation 5i» 

21.  Forfeitm-e CO 

CHAPTER  V. 

SOURCES   OP   INFORMATION. 

Sec.  1.     Recorils C2 

defined G3 

dignity  of 62 

2.  Depositories  of  records 63 

3.  The  right  of  inspection  of  records 63 

4.  Doctrine  of  notice 67 

5.  Constinictive  notice 67 

6.  Actual  notice 69 

7.  Registration 70 

8.  Effect  of  recording  acts 71 

9.  Loss  or  destruction  of  record 7;? 

10.  Official  aifls  to  search 74 

11.  Grantor  and  grantee  indexes 74 

12.  Notice  lis  pendens 7,-) 

13.  Plaintiff  and  defendant  indexes 7(i 

14.  Tax  records 76 

15.  Official  certificates 76 

16.  Clmrch  and  parish  records 76 

CHAPTER  VI. 
INDICES   AND    REFERENCES. 

Sf.-c.  1 .    Importance  of  indexes 78 

2.  Pat<-nt  systeniH 78 

3.  The  government  tract  ImmjU 79 

index  compiiLtl  from 7J) 

4.  Field  iiot««  of  govr-rnuifnt  surveys PO 

us«'s  of  in  aljstracting 8(1 

G.     Tlie  original  entry SI 

nutli'id  of  arranging  lHK)kH ht 

illustration  ((f  Hample  page h\ 

nietlx^J  of  eoiiipilittion 82 


XIV  ANALYSIS    OF    CONTENTS. 

Sec.  PAGE. 

6.  Document  nuiubcr  uidcx 82 

inc'tliod  of  coinpiliition 83 

illustration  of  sami>le  page 83 

7.  Lonp  form  entries 83 

8.  The  tract  index 83 

how  compiled 84 

sample  page 84 

9.  Irregular  index 85 

10.  T;ix  index 86 

method  of  compilation 80 

sample  page 87 

11.  Judgment  index 87 

sample  page 87 

12.  Decrees  and  sales  in  chancery 88 

13.  Vowel  index 88 

14.  Laying  out  the  books 88 

scale  for  indexing 89 

l.-j.     ncsume 90 

CHAPTER  \'n. 
COMPIUNQ   THE  ABSTRACT. 

Sec.  1.  Generally  considered 91 

2.  The  extent  of  the  search 92 

3.  Making  the  chain 93 

4.  Formal  parts 94 

5.  The  caption 94 

for  general  examination 95 

for  assumption  of  title 97 

for  special  examination 98 

for  tax  abstract , 98 

C.    Arrangement  of  the  abstract 98 

practical  example 99 

7.  SjTiopsis  of  instruments 101 

8.  Fullness  of  nan-ation 103 

9.  Examiners'  notes 104 

10.  Irregular  instruments 104 

11.  Abbreviations 105 

12.  Lett4;'r  press  copies 106 

13.  Concluding  certificate 106 

practical  example 107 

order  for  examination 107 

CHAPTER  VIII. 

INCEPTION  OF  TITLE. 

Sec.  1.    Preliminiry  stages  of  title 109 


ANALYSIS    OF   CONTENTS.  XV 
Sec.                                                                                                                                        PAGE. 

2.  Inceptive  measures  under  the  U.  S.  land  laws 110 

3.  Disposal  of  the  public  lands Ill 

4.  Public  land  sales 112 

5.  Private  entry  of  lands 113 

origin  of    term 113 

entiy,   how  made 113 

6.  Nature  of  the   title  conferred  by  entry 114 

7.  "What  lands  subject  to  entry IIG 

8.  Pre-emption  entries 116 

9.  Natiu-e  of  pre-emption  rights 118 

10.  Conveyances  before  entry 119 

11.  Graduation  entries 120 

12.  Donation  entries 121 

13.  Homestead  entries 122 

14.  Rights  acquired  under  homestead  acts 124 

15;    Desert  land  entries 124 

16.  Tree  claims 125 

17.  Location  by  military  warrants 125 

18.  Land  scrip 126 

Virginia  military  scrip 12G 

Indian  or  half-breed  sci'ip 127 

private  land  scrip 127 

agricultural  college  scrip 128 

19.  Swamp  land  grants 128 

act  of  1849 128 

act  of  1850 129 

20.  School  lands 130 

21.  Internal  improvement  grants 131 

22.  Land  grants  to  railroads 132 

23.  Who  may  acquire  a  title 133 

24.  Inceptive  measures  in  the  abstract 133 

CHAPTER  IX. 

INITIAL    STATEMENTS. 

Sec.  1.    The  government  entry 135 

practical  form 135 

2.    The  donative  act 130 

practical   form 1 37 

8.    Continued,  section  si-xtcon 137 

practical  form 1 3V! 

practical  form  for  lieu  land lltH 

4.  Connrm.Ttions 139 

5.  Town  aite  entries Ml 

act  of  IHfVJ Ml 

art  of  I'jOS Ml 

act  of  iy07 Ml 


XVI  A^'ALYS1S    OF    CONTENTS. 

Sec.  TAOE. 

0.     The  roceivor's  rocoipt 112 

practical  luiin 143 

7.  State  huids 144 

comiiiissioner's  receipt 14") 

8.  Tiie  root  of  title 145 

CILVrTER  X. 

CONGRESSIONAL  AND  LEGISLATIVE  GRANTS. 

Sec.  1.    Legislative  grants  generally  considered 147 

2.     Natui-e  and  effect 147 

from  the  United  States 148 

from  the  State 148 

8.     Construction  of  legislative  grants 149 

4.     Foruuil  reiiuisites 150 

practical  form 151 

CHAPTER  XI. 

PATENTS. 

Sec.  1.     Patents,  defined 153 

2.  Patents  from  the  United  States 153 

formal  parts 154 

3.  Continued,  delivery 154 

patents  need  no  delivery 155 

take  effect  by  registration 155 

4.  General  laud  office  record 157 

its  object  and  purport 157 

5.  Operation  and  effect  of  patents 158 

its  evidence  of  governmental  action  158 

when  operatmg  only  as  a  quit-claim  159 

G.     Continued 159 

by  what  laws  patents  construed 160 

purchaser  need  not  look  behind  patent 100 

but  is  chargeable  with  defects  upon  its  face IGO 

7,  Consti-uction 100 

formal  requisites 101 

abstract  of  patent 102 

8,  Patents  from  the  State 102 

classification  of  State  lands 1G2 

history  of  State  titles 102 

to  what  State  patents  confer  title 103 

9,  State  patents,  continued 1 04 

10. .  Formal  requisites  of  State  patents 105 

by  whom  issued 105 


ANALYSIS   OF   CONTENTS.  XVll 

CHAPTER  XIL 

SURVEYS,    PI^VTS    AND    SUBDIVISIONS. 

PAOE. 

Sec.  1.     General  remarks 166 

2.     DivLsioiis  of  the  public  domain 160 

townsliips 167 

sections 107 

plan  of  township,  numbers  and  base  lines 168 

township  plats 109 

8.     Subdivision  of  sections 169 

illustration  of  legal  subdivisions 169 

illustration  of  fractional  section 170 

sketch  maps 170 

4.  Rectangular  system  of  U.  S.  survej'ing 173 

principal  base  line  and  neri  lian  173 

5.  Meander  lines 173 

6.  Plats  and  subdivisions 174 

7.  Formal  requisites 175 

abstract  of  subdivision 176 

8.  Effect  of   registration 177 

9.  Vacation  and  cancellation 17M 

abstract  of  vacation 179 

10.     Dedication  by  plat 179 

distinguished  from  reservation ISO 

CHAPTER  XHI. 

FORMAL  PARTS  OF  DEEDS. 

Sec.  1.  Operative  parts  of  a  deed 183 

2.  Names  of  parties 1S3 

3.  Grantors 1 83 

4.  Grantees 184 

5.  Nature  of  the  instrument 186 

C.  Date  of  instrument 187 

7.  Registration 188 

8.  Consideration 189 

9.  Effect  of  c(}nsideration 189 

10.  Words  of  grant 191 

when  implying  covenant*) Uil 

11.  WonLs  of  purchiiser  and  limitation 193 

rule  in  Shflly's  case 193 

12.  Description  of  profx-rty 1!i.| 

13.  Description,  snniiicncy I!i4 

14.  DeHcription,  coiiKtruction 19,", 

15.  S|><;cial   n-cilals 196 

10.     Tlie  halxjnduin 197 

2 


XVlil  ANALYSIS    OF   CONTENTS. 

SoC.  TAOE. 

17.  ExrrptionR  and  rosorvations 197 

18.  Ci)iulili(>ns  aiul   limitations 198 

19.  Ck)vonant.s 201 

20.  Execution 203 

21.  Signature 203 

22.  Seal 204 

23.  Attestation 200 

24.  Acknowledgment 200 

25.  Delivery 210 

26.  Ancient  deeds 212 

27.  Stamps 213 

CHAPTER  XIV. 
ERRORS,    OMISSIONS  AND  DEFECTS. 

Sec.  1.    Error  generally 215 

2.  Defect  of  parties,  grantor 216 

3.  Defect  of  pai-ties,  grantee 217 

4.  Disparity  of  dates 219 

5.  Technical  phrases ^ 219 

G.     Misdescription,  uncertainty 220 

7.  Misdescription,  omission 222 

8.  Misdescription,  quantity 222 

9.  Defective  covenants 222 

10.  Defective  acknowledgment 224 

11.  Continued 225 

certificates  of  conformity 227 

13.     Repugnancy 228 

CHAPTER  XV. 

CONVEYANCES  BY   INDIVIDUALS. 

Sec.  1.    Deeds  in  general 229 

2.  Deeds  poll  and  indentures 230 

3.  Construction  and  effect  of  deeds 230 

4.  Validity 231 

void  and  voidable  distinguished 231 

latent  ambiguities 232 

5.  Warranty  deeds 232 

legal    import 233 

6.  Aljstract  of  warranty  deed 233 

practical  example 234 

7.  Notes 235 

8.  Quit-claim  deeds 2:J5 

legal  import 236 

9.  Abstract  of  quit-claim  deeds 237 


ANALYSIS    OF   CONTENTS.  XL\ 

Sec.  PAGE. 

10.  Effect  of  covenants  in  quit-claim  deeds 238 

11.  Special  warranty  deeds 239 

legal  effect 239 

12.  Statutory  forms 240 

13.  Common  law  conveyajices 241 

14.  Release 243 

15.  Confirmation 243 

16.  Surrender 243 

practical  example 244 

17.  Assignment 244 

18.  Conveyances  in  futuro 245 

practical  example 246 

19.  Conveyance  of  special  interests  and  estates 247 

20.  Continued,  instances 249 

practical  example 251 

21.  Restrictive  and  conditional  conveyances 251 

22.  Prohibited  conveyances,  adverse  seizin 253 

23.  Continued,  fraudulent  conveyances 254 

24.  Conveyances  subject  to  incumbrance 254 

25.  Dedication  by  deed 256 

26.  Resulting  trusts 257 

27.  Re-records  and  duplicates 258 

practical  example 258 

CHAPTER  XVI. 

PARTICTLAR  CI.ASSES  OF  INDIVIDUAL  CONVEYANCES. 

Sec.  1.     Marriage  settlements 260 

2.  Conveyances  to  husband  and  wife 261 

community  property 263 

3.  Conveyances  between  husband  and  wife 263 

4.  Conveyances  by  married  women 264 

5.  Effect  of  wife's  conveyance 266 

6.  Continued  acknowledgment 266 

7.  Release  of  dower 267 

practical  example 26!) 

8.  Joint  tenancies  and  tenancies  in  coininoii 269 

9.  Partition  deeds 270 

I)racti<'al  exami)Ie 371 

10.  Part/uTHliijt  conveyances 371 

11.  OjrjKirato  convcj-ances 27;) 

12.  Statutes  of  mortmain 275 

13.  Power  of  acquisition;  user 276 

14.  Municipal   cor|K)rationfl 377 

15.  Conveyuncea  to  corporations 377 


XX  ANALYSIS   OF   CONTE^"rS. 

Sec.  PAGE. 

16.  Conveyances  by  coqwrations 278 

practical  example 279 

17.  CoiUiiuK'cl;  execution,  acknowJe(lj::inent 2S0 

piactieal  example 281 

1S<.     Keconl  of  seal 284 

19.  Cdiiveyanees  by  incorporated  religious  eocistios 284 

20.  Heirs  at  law 285 

21.  Post-obit  conveyances 286 

22.  Conveyances  by  delegated  authority 28G 

practical  exami>le 287 

23.  Powers  of  attorney 288 

practical  example 290 

24.  Revocations 291 

25.  Substitution 291 

26.  Conveyances  in  trust 292 

27.  Declarations  of  trust 294 

practical  example 295 

28.  Removal  or  substitution  of  trustees 296 

29.  Resignation,  refusal  to  act ~9G 

CHAPTER  XVH. 

OFFICIAL  C0N\T2YA>.'CES. 

Sec.  1.  Defined  and  distinguished 297 

2.  Official  deeds  generally 298 

3.  Recitals 298 

4.  Covenants 299 

5.  Sheriffs  deed;  on  execution 299 

6.  Continued;  acknowledgment 301 

7.  Continued;  operation  and  effect 301 

8.  Reformation 302 

9.  Statutory  sheriff's  deeds 802 

practical  example 303 

10.  Sheriff's  deed;  under  decree 304 

11,  Master's,  commissioner's  and  referee's  deeds 304 

practical  example 305 

13.     Trustees 305 

13.  Transfers  of  the  legal  estate  by  trustees 307 

14.  Power  of  sale  and  trust  of  sale  distinguished 308 

15.  Trustee's  deeds 310 

practical  example 311 

16.  Mortgagee's  deeds 314 

17.  Exccutora  and  administi'ators 316 

18.  Executor's  deeds 316 

19.  Administrator's  deeds 317 

practical  example 319 

20.  Administrator  with  wiU  annexed 320 


ANALYSIS   OF    CONTEXTS.  XXI 

Sec.  TAGE. 

21.  Guardian's  doeds 321 

22.  Trustees  can  not  become  purchasers 323 

23.  Continued;  exceptions  and  qualilications 324 

CHAPTER  XVIII. 

ASSIGNMENTS,   INSOLVENCY  AND   BANKRUPTCY. 

Sec.  1.  Assipiments  generally 326 

2.  Voluntary  assignments 327 

3.  Validity  of  assignments 328 

4.  Formal  requisites 328 

5.  Title  of  assignee 330 

6 .  Consti-uction  and  effect 331 

7.  Contlict  of  laws;  foi-eign  assignments 331 

8.  Insolvency 333 

9.  Bankiiiptcy 332 

10.  Jurisdiction  and  practice 332 

11.  Classification;  procedure 333 

12.  Nature  and  effect  of  bankruptcy 333 

13.  Bankruptcj'  proceedings;  how  shown 334 

jjractical  example 334 

14.  The  assignment 335 

practical  example 336 

15.  A.ssignee's  deed 336 

practical  example 337 

IG.     Discharge  in  bankruptcy 339 

practical  exami^le. . , 340 

CHAPTER  XIX. 

AGREEMENTS  FOR  CONVEY.\NCE. 

Sec.  1.  Land  conti*acts 311 

2.  Relation  of  parties  under  land  contracts 3-J2 

3.  Effect  and  operation  of  the  contract 342 

4.  Nature  and  re<juisite8 343 

5.  As  effected  by  the  recording  acta 344 

6.  Construction  of  land  contracts 344 

7.  Fftrmal  parts 345 

abstract  of  agreement  to  deed 315 

8.  AKsignnif-nt  of  thf  contract 340 

9.  performance;  HufRciincy  of  deed  and  title 347 

10.  Forfeited   contractii 349 

11.  bond  for  deed 350 

prnctiefil  ilhistratioti 350 

12.  AgreomentH  for  conveyance  by  will 351 


ycx\\  ANALYSIS    OF   CONTENTS. 

CHAPTER  XX. 

LEASES. 

PAGE. 

Sec.  1 .    Nature  and  requisites 852 

2.     Formal  parts 3513 

abstract  of  lease 354 

8.     Covenants  and  conditions 355 

4.  Implied  covenants 356 

5.  Agricultural  lands 357 

6.  Assignment  of  lease 357 

CHAPTER  XXL 

MISCELLANEOUS    EVIDENCE   OF   AND  EFFECTINa    TITLE. 

See.  1.    General  remai'ks 359 

2.  Irregular  instruments 359 

3.  Municipal  ordinances 360 

practical  example 361 

4.  Operation  and  effect  of  oi-dinances 362 

5.  Municipal  resolutions 362 

6.  Official  certificates 363 

practical  example 364 

7.  Incorporated  hereditaments 365 

8.  Easements  and  servitudes 365 

9.  Party  wall  agreements 366 

practical  example 367 

10.  Letters 368 

11.  Affidavits 369 

practical  example 370 

12     Continued;  general  requisites;  sufficiency 370 

13.     Uni'ecorded  evidence 371 

CHAPTER  XXn. 

MORTGAGES. 

Sec.  1.  Nature  of  mortgages 372 

2.  Different  kinds  of  mortgages 373 

8.  The  equity  of  redemption 374 

4.  Rights  of  mortgagor 376 

5.  Mortgages  as  affected  by  estoppel 376 

6.  Merger 377 

7.  Equitable  mortgages 379 

rules  for  determining 379 

import  and  effect 380 

8.  Vendor's  liens 381 

9.  Mortgages  proper 382 

abstract  of 383 


ANALYSIS    OF    CONTENTS.  XXIU 

Sec.  PAGE. 

10.  statutory  forms 884 

11.  Uncertainty  or  error  of  description 384 

12.  Cuveniuits  in  mortgages 385 

13.  Eflfect  of  special  covenants 386 

14.  Special  stipulations  and  conditions 386 

15.  Etfect  of  informant}- 387 

16.  Purchase  money  mortgages 388 

practical  examples 388 

17.  Mortgages  of  homestead 389 

18.  Mortgage  of  after-acquired  propertj- 390 

19.  Record  of  mortgages 391 

20.  Notice  imparted  from  possession 393 

21.  Re-records 393 

23.     Trust  deeds 393 

practical  example 394 

23.  Power  of  sale 396 

24.  Assignment 398 

25.  Oi^eration  and  effect  of  assignments 399 

26.  Formal  requisites  of  assignments 400 

27.  Release  and  satisfaction 401 

23.    Form  and  requisites  of  release 401 

practical  example 403 

29.  Release  by  trustee 403 

30.  Marginal  discharge 404 

practical  example 404 

31.  Foreclosure 40.") 

82.     Proof  of  title  under  foreclosure 405 

CHAPTER  XXIII. 

WILLS. 

Sec.  1.     Wills  generally 407 

2.  Nuncupative  wills 408 

3.  Nature  of  testamentary  titles 408 

4.  Devises 409 

5.  Operation  and  effect  of  devi.ses 409 

6.  Validity  of  devises 410 

7.  TeHtamentarj'  capacity 410 

8.  Construction  of  wills 411 

9.  Repugnancy 413 

10.  Descent  and  purclia.se 414 

11.  Words  of  gr.int 41S 

12.  W(jrds  of  purcliJLse  and  liinitatiun 415 

]:{.     Kulr-  in  Shelly 'h  r.-tse 417 

1  1.     Iiil4Tpretation  of  particul.ir  words  and  pliriLses 41H 

15.     Words  whicli  pass  real  estate 420 


XXIV  ANALYSIS    OF    CONTENTS. 

Sec.  PAGE. 

IG.  Limitations  and  remainders 421 

17.  Devise  to  a  class 423 

18.  Gift  of  the  income  of  realty 423 

19.  Devise  with  power  of  disix>tiitiou 423 

20.  Indeterminate  devise 427 

21.  Devise  on  condition  precedent 428 

22.  Conditional  devise;  marriage 428 

23.  Contingent  remainders 429 

24.  Contingent  reversion 430 

25.  Devise  to  married  woman 430 

26.  Devises  to  executors  in  trust 431 

27.  Bequest  to  the  devise  by  description 432 

28.  Precatoiy  trusts 433 

29.  Perpetuities 434 

30.  Lapsed  devise 435 

31.  Devises  for  the  payment  of  debts 435 

32.  Charges  on  lands  devised 4:0 

33.  Equitable  conversion 437 

34.  The  residuary  clliiise 438 

35.  Codicils 439 

36.  Formal  requisites 440 

37.  Abstract  of  wills 441 

38.  Method  of  arrangement 442 

39.  Practical  examples 4 13 

proof  of  probate 443 

40.  Probate  of  wills 440 

41.  Effect  of  probate 44G 

42.  Foreign  probate 4-17 

43.  Abstract  of  probate  proceedings 448 

practical  examples 4-18 

CHAPTER  XXIV. 

LIENS,    CHARGES   AND   INCUMBRANCES. 

Sec.  1.  Liens  generally 452 

•  2.  How  created 453 

3.  Operation  and  effect 453 

4.  Method  of  arrangement 453 

5.  Mortgages 454 

0.  Dower 454 

7.  Judgments  and  executions 455 

8.  Judicial  and  execution  sales 455 

9.  Lis  jicndeiis  and  attachment 455 

10.  Decedent's  debts 455 

11.  Taxes 455 

12.  Municipal  liens 456 


A^'ALYS1S    OF    CONTENTS.  XXV 

Sec.  PAGE. 

13.  Official   bonds 456 

14.  Leases 457 

15.  Vendor's  liens 457 

16.  Mechanic's   iieu 459 

17.  Priorit;,- 459 

18.  Estate  to  which  lien  attaches 4!'0 

19.  Limitation  of  lien 461 

20.  Assignabilit}- 462 

21.  Foreclosure  of  lien 463 

CHAPTEE  XXV. 

LIS  PENDENS  AND   ATTACHMENT. 

Sec.  1.    Docti'ine  of  Us  pendens 463 

2.  Continued ;  effect  of  dismissal 404 

3.  Notice  lis  j)endens 465 

practical  example 466 

4.  Property  drawn  mcidentally  in  question 466 

5.  Attachment 467 

6.  Formal  requisites  of  attachment 468 

practical  example 468 

CH.VPTER  XXVI. 

JUDGMENTS  AND  DECREES, 

Sec.  1.  Judpjments  and  decrees;  defined  and  distinguished 470 

2.  Operation  and  effect  of  judgments 471 

3.  Lien  of  judgments 471 

4.  Duration  of  lien 473 

5.  Priority 474 

6.  After-acquired  property 476 

7.  Formal  requisites  of  judgments 476 

practical  example 477 

8.  Subrogation 478 

9.  Satisfaction  and  discharge 479 

10.  Judgments  against  a  deceased  person 480 

1 1 .  Exemi»tion8 480 

12.  Decrees  cla.s.sified  and  distinguislied 480 

13.  Operation  and  effect  of  decrees 481 

14.  Dcrees  rendered  on  ajnstructive  notice 483 

15.  Lien  of  decre<-H 4H3 

10.     Formal  refjiiisiti-H  of  dicreea 4S3 

17.  Al>!^tra<t  of  decrees 484 

practical  example 485 

18.  Errorw  and  defeetn 4S.-5 

19.  0|MT!ition  ami  effect  of  probate  decreew 4*^8 

20.  Fijreign  juflgmentH  and  di-crecH 489 


XXvi  ANALYSIS   OF    CONTENTS. 

CHAPTER  XXVII. 

JUDICIAL   AND    KXECUTION    SALES. 

PAGE. 

StH;.  1.  Judicial  and  execution  sales;  defined  and  distinguished.. . .    41)0 

2.     Exei'ution  sales;  validity  and  ellect 491 

8,     Title  under  execution  sale 493 

4.  When  the   title  vests 494 

5.  The  writ 494 

6.  Tlie  levy 495 

7.  Notice  of  sale 49G 

practical  example 496 

8.  Proof  of  publication 497 

practical  example 497 

9.  Execution  sale  as  affected  by  death 498 

10.  Exemi)tions 499 

11.  Judicial  sales;  validity  and  effect 500 

12.  Title  under  judicial  sales 501 

13.  Rights  of  purchaser 503 

14.  Compelling  purchaser  to  take  title 502 

15.  Order  of  confirmation 503 

10.     Effect  of  confirmation 504 

17.  Certificate  of  sale 505 

practical  example;  by  slieriff 506 

practical  example;  by  master 507 

18.  Assignment  of  certificate 508 

19.  Proof  of  title  under  judicial  and  execution  sales 508 

20.  Continued;  what  must  appear 510 

21.  Probate  sales 511 

22.  Nature  and  requisites  of  probate  sales 513 

23.  Abstract  of  probate  sales 514 

practical  example 515 

CHAPTER  XXVIH. 

CHANCERY  RECORDS  AND  PROCEEDINGS. 

Sec.  1.    Cliancery  proceedings  generally 517 

as  affected  by  codes 518 

2.  Authority  and  jurisdiction  of  chancery  courts 519 

3.  Authority  and  jurisdiction  of  probate  courts 520 

4.  Actions  and  proceedings  to  be  noticed 520 

5.  Jurisdiction  the  great  essential 521 

6.  Notice  afforded  by  chancery  records 522 

7.  Process 523 

8.  Formalities  of  a  summons 524 

9.  Service 525 

10.  Proof  of  service 526 


ANALYSIS    OF   CONTENTS.  XXVll 

Sec.  PAGE. 

11.  Affidavit  and  order  of  publication 529 

12.  Master's  and  referee's  reports 530 

13.  Virdiots 530 

14.  Abstract  of  chancer}'  proceedings 531 

practical  example 531 

15.  Injunctions 533 

16.  Ejectment 534 

17.  Quia  timet 530 

18.  Partition 537 

practical  example 539 

19.  Specific   performance 541 

20.  Redemption 542 

21 .  Foreclosure 543 

enumeration  of  methods 543 

22.  Dower 544 

23.  Divorce 545 

practical  example 547 

24.  Right  of  eminent  domain 548 

25.  Proceedings  for  condemnation  and  assessment 549 

26.  Construction  of  wills 550 

CHAPTER  XXIX. 

TAXES  AND  TAX  TITLES. 

Sec.  1.  Definition:  nature  and  scope  of  the  taxing  power i.  551 

2.  Subjects  of  taxation 552 

3.  Lien  of  taxes 553 

4.  Tax  titles 553 

requisites  and  effect 554 

5.  Nature  of  tax  titles;  dependent  or  indejiendent 555 

6.  Proceedings  incident  to  taxation 5.")(» 

7.  Description  of  land;  assessors'  plats 550 

8.  Sale  for  non-payment 557 

practical  examples 559 

9.  Forfeitures 559 

10.  Tax  sales;  tax  payor  as  purchaser 5('i» 

11.  Rights  of  jmrcha.ser8 501 

12.  R(<lciiiption , 502 

13.  Ccrtiiicate  of  sale 5(i3 

practical  example .50 1 

14.  Tax  deeds 5(U 

15.  Continufd;  statutory  niodific  alitms  of  coiimmn  law  ruii-s..  505 
10.     Forinul  partfl 500 

practical   t'xainplcs 50H 

17.  F.ff.'t  i.f  died   jiH  oviilcnri' 50H 

18.  Tax    ()c<-d;  iM>HHCHHion;  limitation 570 

10.     Tax  ulwtracta 571 


XXVm  ANALYSIS   OF   CONTP:XTS. 

CHAPTER  XXX. 

DESCENTS. 

PAGE. 

Sec.  1.     Title  by  descent 573 

2.  Nature,  opi'iation  and  incidents  of  title 573 

3.  Inlieritance  as  dei)end<nt  upon  seizin 574 

4.  Heirship;  its  rights  and  privileges 575 

5.  The  line  of  succession. .  .• 575 

6.  General  rule  of  descents 576 

7.  The  right  of  representation 577 

8.  Preferences 577 

9.  "Who  may  take  by  descent;  aliens 577 

10.  Continued:  adoptive  heire 579 

11.  Ancestral  estates;  haJf  blood 579 

13.     Surviving  consorts 580 

13.  Coparcenci-s 580 

14.  What  descends 581 

15.  How  affected  by  ancestral  covenants 581 

10.     Liability  for  ancestral  debts 581 

17.  Creditor's  liens 583 

18.  Equitable  conversion 583 

19.  Pioof  of  heii-ship 584 

20.  Proof  of  death 586 

21.  Continued;  official  registration 588 

practical  example 589 

23.     Continued;  probate  of  death 589 

23.  Proof  of  birth  and  legitimacy 590 

24.  Validity-  of  descents 591 

25.  Al  )stract  of  descents 593 

example  of  pedigi'ee 593 

26.  Continued;  probate  proceedings 59.^ 

practical  example 594 

27.  Settlement  without  administration 595 

28.  Escheat 595 

CHAPTER  XXXI. 

ADVERSE   TITLE. 

Sec.  1.    Adverse  title,  generally  considered 596 

2.  Adverse  conveyances 596 

practical  examples 597 

3.  Character  of  adverse  possession 599 

4.  Color  of  title 601 

5.  Adverse  possession  under  color  of  title 603 

6.  Constructive  possession 603 

7.  Advei-se  possession  from  user 604 


ANALYSIS    OF   CONTEXTS.  XXIX 

Sec.  PAGE. 

8.  Nated  possession  without  claim G04 

9.  Tacking G05 

10.  Possession  as  notice GO") 

11.  Wlio  may  acquii-e  adverse  title C(;6 

12.  Remainder-men 607 

13.  Reversioners 607 

14.  Tenants  in  common 608 

15.  Pel-sons  under  disability 608 

16.  Adverse  rights  as  against  the  State G09 

17.  Elf ec"t  of  advei-se  possession 010 

18.  Proofs  to  support  title  by  adverae  possession 611 

CHAPTER  XXXII. 

OPINIONS  OF  TITLE. 

Sec.  1.    Perusing  the  abstract G12 

Mr.  Sugdeu's  views G13 

2.  Note  taking C14 

3.  Examination  of  the  muniments G15 

4.  Exammation  of  deeds 617 

5.  Examination  of  legal  proceedings  and  judgments 618 

6.  Marginal  notes  and  re(iuisitions 620 

7.  Continued;  English  and  American  Methods  compared 621 

example  of  requisitions 623 

8.  Answers  to  re^iuisitions 623 

9.  Affidavits  of  pedigiee 623 

30.     Analysis  of  title 624 

practical  example 623 

1 1 .  Analytical  chains 627 

practical  example 629 

12.  Sketch  maps 680 

13.  Preservation  of  memoranda 631 

14.  Passing  the  title 631 

15.  What  constitutes  a  valid  titlj 632 

10.     Flaws «34 

17.     Clouds  upon  title 630 

IH.     Inquiries  in  pain C37 

19.  C(»iitinu<'d;  mechanic's   liens G39 

20.  CVditirmed;  easements  and  servitudes C, lo 

21.  Continue*];   lioineslcads CI i 

22.  Printe*!  copies 61 1 

23.  I'Yarning  opinions 613 

24.  Opinions  of  title 613 

practical  exnnip!**! (j,.") 

25.  Continued;  certifieatea  of  title GIG 


XXX  ANALYSIS   OF    CONTENTS. 

Sec.  PAGE. 

26.  Opinions  based  upon  the  abstract 647 

practical  example 649 

27.  Perspicuity  of  expression 651 

28.  Oral  opinions 652 

29.  Liability  for  erroneous  opinions 653 

80.     Conclusion 656 

APPENDIX. 

Now  England  abstracts 657 

English  analysis  of  abstract 658 

Tables  of  land  measures 660 

Spanish-French  land  mea.sures 663 

Spanish-Mexican  land  measures 664 

Texas  land  measures 667 


TABLE  OF  CASES. 


[the  FIGIRES  RKFi  K  To  THK  PAGES.j 


Abbot  V.  Wilber,  41. 

Abbott    V.   Holway,    Adm'r,  245, 

Abbott  V.  Smelting  Co.,  229. 
Abbott  V.  Doling,  557,  558,  567. 
Abell  V.  Latlirop,  22. 
Acer  V.  Wescott,  67,  197. 
Adam  v.  Norris,  159. 
Adams  v.  Morse,  198. 
Adams  v.  Buchanan,  301. 
Adams  V.  Jones,  586, 
Adams  v.  Frothingham,  48. 
Adams  v,  Adams,  520. 
Adington  v.  Hefner,  401. 
Adrian  v.  Shaw,  22. 
Agricultural  Ass'n  v.  Neill,  214. 
Agricultural  Society  v.  Paddock, 

278. 
Aiken  V.  R.  R.  Co.,  378. 
Akersv.  Akers,  418. 
Albee  v.  Ward,  509. 
Alexander  v.  Stewart,  523. 
Alexander  v.  State.  45. 
Allaire  v.  Allaire,  447,  449. 
Allard  v.  Lane,  401. 
Allen  V.  Hawley,  21. 
Allen  V.  Bat«J,  195. 
Allen  V.  Ilolton,  298. 
Allen  V.  Sah^s.  300. 
Allen  V.  W.xxlrulT.  344,  346,  ai7. 
All<-n  V.  Culver,  356. 
Allen  V.  Dtring.  458. 
All<'n  V.  Morris,  404. 
Alien  V.  Cole,  496. 
Allen  V,  Poole,  5^2. 
Allen  V.  McGaugliey.  492. 

(xx 


Allen  V.  Smith,  535. 

Allen  V.  Armstrong,  565. 

Alexander  V.   ToUeston  Club,  276. 

Allie  V,  Schmitz,  538. 

Allison  V.  Hunter,  143. 

Allman  v.  Taylor,  500,  503. 

Almy  V.  Hunt,  455. 

Almond  v.  Almond,  466. 

Altes  V.  Hinckler,  553. 

Alton  V.  Tranportation  Co.,  231. 

Alton  Ins.  Co.  v.  Buckmaster,  537. 

Alhvood  V.  Mansfield,  464. 

Am.  Bible    Society  v.   Sherwood, 

277. 
Ambrose  v,  Raley,  600. 
Amesti  v.  Castro,  53,  535,  536. 
Amphlet  v.  Hibbard,  390. 
Anderson  v.  McGowan,  321, 
Andei-son  v.  Culbert,  389. 
Anderson  v.  Tuck,  475. 
Anderson  v.  Kerns  Draining  Co., 

551. 
Annan  v.  Baker,  507,  570, 
Appei-son  v.  Burgett,  475. 
Applegate  v.  Edwards,  406. 
Aquire  v.  Alexander,  608. 
Armstrong  v.  Ross,  266. 
Armstrong  v,  Lear,  446. 
Armentrout's  Exr.  v.  Gibbons,  381, 

382. 
Arnold  v.  Arnold,  261. 
Arthur  v.  Cole,  429, 
Artliur  V.  Webster,  IW,  273. 
Aston  V.  Calloway,  4'i6. 
A.stor  V.  Iloyt,  373. 
Awtruni  v,  Ilanimoiid,  115. 
xi) 


xxxu 


TABLE    OI<'    CASKS. 


AtluTton  V.  Fowlor,  117. 
Atkins  V.  Kininan,  298,  r)GO, 
Atkins  V.  Hin.nan,  300,  553. 
Atkins  V.  llonlo,  535. 
Atlanta  Mills  v.  Mjison,  25. 
Atlanta   Dock   Co.  v.   Lcavitt,  43, 

200. 
Attorney  General  v.  Garrison,  247. 
Atwooil  V.  Wright,  433. 
Aiiltman  v.  O^L-rineycr,  204. 
Austin  V.  Cainbriilgeport,  430. 
Anstin  v.  Baintor,  531. 
Austin  V.  Wohlor,  039. 
Austin  V.  Bailey,  575. 
Austin  V.  Downer,  381. 
Aveiy  V.  Babcosk,  477. 
Aver  V.  Ayer,  424. 
Ayling  v.  EJ*a.nor,  200. 

Babbit  v.  Bo  wen,  595. 

Babcock  v.  Jones,  476. 

Bachman  v.  Sepulveda,  484. 

Bacon  v.  Van  Schoonhover,  399. 

Bangel  v.  Brodrick.  27,  28,  114,  143. 

Bailey  v.  Litten,  268. 

Bailey  v.  DoolittlL-,  530. 

Bailey  v.  Smith,  399. 

Bailey  v.  Bailey,  29G. 

BairJ  v.  Wolf.'l43. 

Baker  v.  Bridge,  427. 

Baker  v.  Chandler,  400. 

Baker  V.  Hale,  GOl. 

Baker  v.  Hunt,  224. 

Baker  v.  Scott,  417. 

Baker  v.  Swan,  001. 

B  I'cer  V.  Neflf,  270,  278. 

Balcum  v.  Wood,  21,  239,  390. 

Baldwin  v.  Sagor.  399. 

Baldwin  v.  Pool.  342. 

Bales  V.  Perry,  oil. 

Ballou  V.  Lucas,  236. 

BallaTne  v.  Forsythe,  560. 

Ballance  v.  Tesson,  148. 

Bank  v.  Anderson,  399. 

Bjmk  V.  Stone,  339. 

Bank  v.  Drouiniond,  381. 


Bank  v.  Greensboro,  300. 
Bank  v.  Burns,  479. 
Bank  v.  Clapp,  333. 
Bank  v.  Green,  21. 
Bank  v.  nuini)hrey3,  505. 
Bank  v.  Kortright,  280. 
Bank  v.  Lanaham,  374. 
Bank  v.  Lyons,  22. 
Bank  v.  Ogden.  44. 
Bank  v.  Rice,  217. 
Bank  v.  Ward,  8,  616,  654,  656. 
Bank  v.  Willis,  327. 
Banker  v.  Caldwell,  7. 
Barber  v.  Roarbeck,  21. 
Barber  v.  Harris,  249. 
Barbour  v.  Mtg.  Co.,  403. 
Barbour  v.  Gates,  213. 
Barclay  v.  Plant,  264. 
Bardsley  v.  Hines,  526. 
Barnhizel  v.  Ferrell,  31. 
Barheydt  v.  Barheydt,  427. 
Barker  v.  Barker,  511,  520. 
Barker  v.  Komins,  447. 
Banker  v.  Dayton,  10. 
Barker  v.  Ins.  Co.,  525,  527. 
Barnard  v,  Campan,  72. 
Barnhizel  v.  Ferrell,  36. 
Barnes  v.  Mott,  479. 
Barnet  v.  Mendenhall,  22. 
Barnet  v.  Proskauer,  207. 
Barnet  v.  Lachman,  185,  273. 
Barnett  v.  Newark,  360. 
Barney  v.  Keokuk,  51,  163. 
Barney  v.  Little,  75. 
Barrett  v.  Messner,  21. 
Barron  v.  MuUin.  492. 
Barron  v.  Robbins,  537. 
Barry  v.  Gamble,  160. 
Barter  v.  Greenleaf ,  158. 
Bartell  v.  King,  413. 
Bartlett  v.  King,  414. 
Barton  v.  Moss,  560. 
Ba.s3  V.  Estill,  73,  209. 
Bassett  v.  Bassett,  190. 
Biissett  V.  Lockard,  493. 
Butchelder  v.  Keniston,  49. 


TABLE   OF   CASES. 


xxxm 


Bates  V.  Xorcross,  44. 

Bates  V.  Spooner,  4S1. 

Bates  V.  Shrader,  575. 

Bates  V.  Ableman,  3"29. 

Bates  V.  Seely,  2C3. 

Batosville  Inst.  v.  KaufFman,  296. 

Bauer  v.  Gattmanhaiisen,  70. 

Bauglier  v.  Moirynian,  381. 

Baxter  V.  Arnold,  175. 

Bayliss  v.  Williamp,  190. 

Beacroft  v.  Strawn,  422. 

Beach  v.  Beston,  327. 

Beall  V.  White,  391. 

Beal  V.  Dlair,  223. 

Bean  v.  People,  64,  65. 

Beai-ss  v.  Ford,  373,  375.  379. 

Beatty  v.  Kurtz,  180. 

Beatty  v.  Ma.son,  599. 

Beatty  v.  DLxon,  519. 

Beaufort  v.  Duncan,  363. 

Becker  v.  Howard,  563. 

Bedell  v.  Shaw,  604. 

Beecher  v.  Wethcrby,  107. 

Beecher  v.  Hicks,  193,  250. 

Beekman  v.  Frost,  392. 

Beekman  v.  Bin;;ham,  570. 

BolcluT  V.  Branch,  321. 

B<^lden  V.  Sleeker,  37,  447,  484,  485. 

Bell  V.  Duncan,  160. 

Bell  V.  Heame,  126. 

Bell  V.  Boston,  224. 

Bell  V.  Twilight,  238. 

Bell  V.  Humphrey,  412,  413. 

Bi-11  V.  Simpson,  398. 

Bell  V.  Fanners'  Bank   210. 

Bell  V.  I^ngwortli,  001, 

I'..I!mu-s  V.  Todd,  116. 

I'.M.y  V,  Engle.  193. 

Ii«-nian  v.  Green,  345. 

Ik-mi.s  V.  Becker,  'M^. 

Benkert  v,  Jacohy,  424. 

Bennett  v.  Kaloman,  399. 

Bennett  v.  Whitman,  520. 

r.'i.ri.  tt  V.  Nicliols.  517,  519. 

]:■  lih.-tt  V.  M'Kadden.  519. 

r-.  i.n.tt  V.  Wall.r,  239,541. 


Bennett  v.  Williams,  522. 
Benson  v.  Morrow,  48,  163. 
Benson  v.  Humplueys,  220, 
Bergan  v.  Caliill,  411. 
Bergen  v.    Ebey,  45S. 
Berger  v.  Bennett.  397. 
Bergman's  Appeal,  488. 
Berlin  v.  Mclhorn,  503. 
Berry  v.  Derwart,  194. 
Berties  v.  Nunan,  262,  203. 
Besore  v.  Dosh,  563. 
Bessemer  v.  People,  524,  525. 
Best  V.  Gholson,  390. 
Bethel  v.  Bethel,  233,  500,  504. 
Betsey  v.  Torrance,  254. 
Betsinger  v.  Chapman,  590. 
Beygeh  v.  Chicago.  497. 
Bicknell  v.  Bicknell,  317. 
Biglow  V.  Forest,  54. 
Biglow  V.  Wilson,  467. 
Bill  V.  Mason,  458. 
Billings  V.  Stark,  213. 
Binghamton  Bridge  case.  149. 
Binkert  v.  AVabash  R'y,  553,  557. 
Birard  v.  Walker,  210. 
Birdsall  v.  Hewlett.  436. 
Birdsall  v.  Russk^H,  08.  70. 
Bishop  V.  O'Connor,   298,  320,  081. 
Bishop  V.  Morgan,  195. 
Bishop  V.  Sclmeider,  73,  75. 
Black  V.  Gregg,  388. 
Blackwell  v.  Barnett,  401. 
Blackburn  v.    Crawford's    Lessee, 

590,  624. 
Blackwood  V.  Van  Vliet,  555. 
Blacklaws  v.  Wilno,  584. 
Blair  v.  Osborne,  186. 
Blair  v.  Vanblarcum,  250. 
Blake  v.  Williams.  398. 
Blake  v.  Shaw,  467." 
Blake  V.  Stone.  417. 
Blake  v.  FiKh,  187. 
Blakely  v.  Bestor,  507.570. 
B!agg<'  V.  Miles.  420. 
Bl.mchard  v.  Ware.  522. 
I'.lan.hard  v.  Strait,  524. 


XXXIV 


TABLE    OF   CASES. 


Blam-hard  v.  Maynanl,  412. 
Blaiuhara  v.  Bissoll.  m2. 
Blanclianl  v.  Brooks,  238. 
Blauvult  V.  Ackennan,  324. 
Blayton  v.  ]Mc'rn-tt,  291. 
Blotch  V.  Johnson,  487. 
Bloilgot  V.  Ilitt,  490,  497,  514. 
Blood  V.  Blood,  73. 
Blood  V.  Lif^ht,  492. 
BloomlioldK.  R.  Co. v.  Burgess,  486. 
Boardiuan  v.  Bourne,  566. 
Boardman  v.  Reed,  161. 
Boerum  v.  Sehenck,  324. 
Bolm  V.  Bai-rett's  Exr.,  415,  483. 
Bogardus  v.  Ti'inity  Ch.,  604. 
Bogert  V.  Elizaheth,  636. 
Bogy  V.  Slioah,  238. 
Bohon  V.  Bohon,  245,  286. 
Bonnell  v.  Holt,  458. 
Booker  V.  Warrill,  264. 
Boorman  v.  Sunnucks,  50,  174. 
Boon  V.  Pierpont,  385. 
Booth  V.  Cook,  208. 
Booth  V.  Small,  599. 
Bootlu-oyd  V.  Engle,  204. 
Boreel  v.  Lawton,  301. 
Borders  v.  Murphy,  525. 
Borland  v.  Walrath,  209. 
Bostick  V.  Blades,  428.  429. 
Bostwick  V.  Powers,  75. 
B<jttineau  v.  Ins.  Co.,  497. 
Botsford  V.  O'Connor,  513,  525,  526. 
Bozza  V.  Rowe,  505. 
Botsford  V.  Wilson,  236. 
Bourland  v.  Peoria,  69. 
Bowers  v.  Oyster,  347. 
Bowel's  V.  Kuscher,  119. 
Bowel's  V.  Andrews,  222. 
Bowen  v.  Bond,  512. 
Bowen  v.  Preston,  610. 
Bowen  v.  Bonner,  495. 
Bowen  v.  Thrall,  238. 
Bowinv.  Sutherland,  527. 
Bowlin  V.  Pearson.  458. 
Bowman  v.  Lee,  599,  604. 
Bowman  v.  Thompson,  479. 


Bowman  v.  Whettig,  493. 
Bowman  v.  People,  494. 
Bowman  v.  Cockerill,  566. 
Boyd  V.  Slayhack,  63  Cal.,  493. 
Boylan  v.  WaiTen,  64. 
Boy  land  v.  Boy  land,  526. 
Boynton  v.  lluhhard,  280. 
Boynton  v.  Rees,  190. 
Bozza  V.  Rowe,  433. 
Bracket  v.  Gilmore,  564. 
Bradbury  v.  Falmouth,  70. 
Bradford  v.  Howell,  193. 
Bradstreet  v.  Clark,  252,  413. 
Bradshaw  v.  Bradshaw,  219. 
Bradshaw  v.  Bradbury,  195. 
Brady  v.  Spnick,  235. 
Brain  v.  Renshaw,  220. 
Branie  v.    Craig,  21. 
Branch  v.  Lowery,  473. 
Brannan  v.  Brannan,  228. 
Brannan  v.  May,  580. 
Branger  v.  Lucy,  582. 
Brantly  v.  Cheeley,  324. 
Brashear  v.  Connor,  595. 
Brattle  Sq.  Ch.   v.  Grant,  358. 
Braxton  v.  Bressler,  48. 
Breckenridge  v.  Tood,  187,  213. 
Brennan  v.  Wilson,  307,  331. 
Brewer  v.  State,  590. 
Brewer  V.  Watson,  63,  65. 
Brewster  v.  Hardy,  245. 
Brewster  V.  Madden,  119. 
Brewton  v.  Watson,  192. 
Brice's  Estate,  590. 
Bridge  v.  Wellingion,  192,  233. 
Briggs  V.  Davis,  331. 
Brightman  v.  Brightman,  406. 
Brine  v.  Ins.  Co. ,  29. 
Brinkerhoff  v.  Lansing,  534, 
Britton  v.  Lorentz,  329. 
Brock  V.  Frank,  447,  448. 
Brolasky  v.  Furey,  212. 
Bromley  v.  Goodi-ich,  232. 
Bronson  v.  Kukuk,  114. 
Bronson  v.  Kinzie,  29. 
Brodie  v.  Watkins,  191,  233. 


TABLE    OF    CASES. 


iXXV 


Bronfield  v.  Wilson,  413. 
Brown  v.  Dolaney.  398. 
Brown  v.  Tliorndike,  415. 
Brown  v.  Clark,  439. 
Brown  v.  Jewett,  586. 
BrowTi  V.  Cockerill,  601. 
Brown  v.  Coble,  603. 
Brown  V.  Brown,  233. 
Brown  V.  Smith.  463. 
Brown  v.  Phil.  Bank,  208. 
Brown  v.  Barker,  480,  499. 
BrowTi  V.  Rose,  611. 
Brown  v.  Thompson,  214. 
Brown  v.  Coal  Oil  Co.,  236. 
Brown  v.  Pforr,  289. 
Brown  v.  Brown,  429. 
Brown  v.  Throckmorton,  118. 
Brown  v.  United  States,  60. 
Brown  v.  Kimbrough,  222. 
Brown  v.  Chambcrlin,  330. 
Brown  v.  Jackson,  238. 
Brown  v.  Parker,  525. 
Brown  v.  Manter,  191,  193. 
BrowTie  v.  Ferrea,  493. 
Browning  v.  Howard,  503. 
Browning  v.  Harris,  389. 
Brownfield  v.  Wilson,  413,1119. 
Brown  field  v.  Djer,  526. 
Brookbank  v.  Kcrnard,  364. 
Brooks  V.  Bruin,  GUI,  603. 
Brooks  V.  Rooney,  425. 
Brooks  V.  Curtiss,  25. 
Brooks  V.  ChapiK'i,  530. 
Broome  v.  ilonck,  ;i43. 
Bruce  v.  Luke,  43. 
Bru.sli  V.  Ware,  68. 
Brj-ant  v.  Christian,  425. 
Bryan  v.  Kaniircz,  209,  337. 
Bryne  v.  Morehouse,  197. 
Bu<h:m  v.  Hart,  290. 
Buchanan  V.  (.'urtis,  52. 
Buclier  v.  Wtthcrby,  131. 
Buck  V.  C<jllins,  43,  64,  65. 
Buckingham  v.  Jac<jufs,  82,  580. 
Buckingham  v.  WcKson,  265. 
Buckma«t<.T  v.  RydcT,  537. 


Buckner  v.  Street,  240. 

Buoll  V.  Irwin.  461. 

Bulla lo  V.  Webster,  361. 

Bull  V.  Willard,  387. 

Bull  V.  Bull,  431. 

Bullock  V.  Battenhousen,  393. 

Bullock  V.  Wilson,  114. 

Bunce  v.  Reed,  498. 

Bunch  V.  Hardy,  250. 

Bundy  v.  Ophir  Iron  Co.,  210. 

Burch  V.  Carter,  458. 

Burch  V.  Burch,  409,  436. 

Burdens  v.  Araperse,  361. 

Burdickv.  Wentworth.  115. 

Burdick  v.  Briggs,  114,  547. 

Burgess  v.  Gray,  118. 

Burgett  V.  Paxton,  473. 

Bixrke  v.  Stokely,  480. 

Burkholder  v.  Cased,  211. 

Burlen  v.  Shannon,  43. 

Burleigh  v.  Clough,  30,  422,  424. 

Bui-lington  University  v.    Barrett, 

440. 
Burnet  v.  Pratt,  269. 
Burnet  v.  Burnet,  438,  439. 
Bunisidev.  Merrick,  373. 
Burr  V.  Mueler,  370. 
Burrows  v.  Bailey.  833. 
Burton  v.  LeRoy,  205. 
Burton  v.  Tuite,  66,  67. 
Burtnors  v.  Keran,  43. 
Burwill  V.  Jackson,  .3-18. 
Busch  V.  Donohue,  118,  149. 
Busch  V.  Huston,  560. 
Bussey  v.  Hardin.  503. 
Bushnell  v.  Harfortl.  534. 
Bustamete  v.  Bescher,  527. 
Butcher  v.  Rogei-s.  191. 
Butlers  Ai)peal,  553. 
Butler  V.  Ia'O,   481. 
Butler  V.  Haynes,  405. 
Butler  V.  Hoog,  413. 
Butler  V.  Davis,  222. 
Butler  V.  Roys,  270. 
Butler  V.  Huestis,  193,411,417,  419. 
Butlerlield  V.  llaskina,  423. 


XXXVl 


TAULE    OF    CASES. 


P-uttiTwoilh  V.  rrawfonl.  OH. 
Button  V.  Am.  Tract  Sucifty,  -132. 
Button  V.  8(hi\>yt'r,  'M2. 
Byai-s  V.  Spencer,  310. 
Bynio  V.  lioborts,  536. 

Caal  V.  Hijrgins,  17.  G33. 
Cal»ccn  V.  Muckenriilj^e,  69. 
Cable's  Appeal,  424,  436. 
Caily  V.  Eij^hmey,  125. 
Cady  V.  Shepai'd,  273. 
Cahill  V.  Palmer,  599,  600. 
Cahoon  v.  Coe,  558. 
Calonan  v.  Ilui'ley,  565. 
Calcord  v.  Alexander,  221. 
CaldweU  V.  Caldwell,  412. 
Caldwell  V.  Laininer,  463. 
Calhoun  v.  Cook,  599. 
Callins  v.    Lavelle,  193,  220.   230 

231,  219. 
Callaway  v.  Fash,  209,  227. 
Calumet  Co.  v.  Eussell,  221. 
Cambridge  Bank  v.  Delano,  67,  69. 
Cameron  v,  Sujwrvisors,  57. 
Cameron  v.  Logan,  493. 
Camp  V.  Smith,  120. 
Camp  V.  Bates,  533. 
Campbell  v.  Johnson,  221,  222. 
Campbell  v.  Campbell,  257,  4U8. 
Camp1:)ell  v.  McCahn,  448. 
Campbell  v.  Ware,  579. 
Campbell  v.  Wig;rins,  415. 
Campbell  v.  Wilson,  590. 
Canal  Cbmmissionei"s  v.  People,  47. 
Canlleld  v.  Bostwick,  409. 
Ciumon  V,  Brame,  481 . 
Capix)ck  V.  Smith,  870. 
Capehart  v.  Dowery,  501,  503. 
Carbine  v.  Morris,  300. 
Carbine  v.  Pringle,  69. 
Cardell  v.  Ryder,  264. 
Cary  v.  Whitney,  343. 
Carey  v.  Rae,  25. 
Carlisle  v.  TiBdall,  463. 
Carlisle  v.  Unite.l  States,  16. 
Carman  v.  Johnson,  111. 
Carow,  In  re,  334. 


Carpenter  v.  Underwood,  329. 
Carpenter  v.  Dexter,  IS"). 
Carpenter  v.  Sherfy.  209,  476,  477. 
Caqienter  v.  Browning,  413. 
Carpenter  v.  Buwen,  373,  454. 
Carpenter  v.  IMitchell,  :;S2,  458. 
Carpenter  v.  Denoon,  607. 
Carpentier  v.  Williamson,  235. 
Carr  v.  Rising,  21. 
Carr  v.  Ellison,  350. 
Can-  V.  Carr,  379. 
Carroll  V.  Safford,  115. 
Carroll  v.  E.  St.  Louis,  274. 
Carroll  v.  CarroU,  447. 
CarroU  v.  Gillion,  599. 
Cai-son  V.  Murray,  24.  _ 
Cai-ter  v.  Wise,  235,  236. 
Cancer  v.  Louthain,  241. 
Case  V.  Codding,  257. 
Casebolt  v.  Donaldson,  21. 
CasseU  v.  Cook,  226. 
Carter  v.  Wise,  195,  196. 
Catc  V.  Craynor,  413,  421. 
Catlin  V.  Ware,  191. 
Catlins  v.  Decker,  606. 
Catlmo  V.  Decker,  524. 
Cavanaugh  v.  Peterson,  393. 
Cemetery  v.  R.  R.  Co.,  57. 
Chadboiu-ne  v.  ilason,  495. 
ChaUis  V.  R.  R.  Co.,  58,  543. 
Challefoux  v.   Ducharme,  41,  53, 

136,  148. 
Chambers  v.  Jones,  318. 
Chambers  v.  St.  Louis,  277. 
Chambers  v.  Cox,  389. 
Chamberlain  v.  Bell,  69. 
Champaign  v.  Ilarman,  277. 
Chandler  v.  Chandler,  245. 
Chandler  v.  Spear,  566. 
Chandler  v.  Cheney,  263. 
Chapin  v.  Gilbert,  424. 
Chapin  v.  Curtenius,  333. 
Chapman  v.  Lee,  11. 
Chapman  v.  Temi)leton,  571. 
Charles   River  Bridge  v.    Warren 

Bridge,  161. 


TABLE   OF    CASES. 


XXXVU 


Cliarles  v.  Wauj?h.  553,  558. 

Chase  v.  Ross,  320. 

Chase  v.  Ileaney,  8,  056. 

Chase  v.  Whiting.  '299. 

Chase  v.  Peck,  347. 

Chataid  v.  Pope,  113. 

Chatham  v.  Bradforil,  75. 

Cheever  v.  Peiley,  401. 

Cheney  v.  Cook,  541. 

Chicago  V.   Vulcan  Iron  "Works, 
253. 

Cliicago  V.  Lamed.  5G,  552. 

Cliicago,  etc.,  R.  R.  Co.   v.  Joliet, 
52. 

Chicago,   etc.,  R.  R.  v.  Kennedy, 
67. 

Chiles  V.  Conley's  Heirs,  192. 

Chiniquy  v.  Catholic  Bishop,  218, 
226,  535. 

Cliope  V.  Lornian,  42. 

Chouteau  V.  Eckhart,  147. 

Cliristian  v.  Newbeiry,  378. 

Christie  v.  Gage,  607. 

Cliristy  v.  Dana,  120. 

Christy  v.  Fislior.  5G0. 

Cliubb  V.  .Jolinson,  31. 

Cliurch  V.  Gilman,  155. 

Church  V.  Furniss,  528. 

Church  V.  Sinitli,  342. 

Churchill  v.  Reamer,  230,  418. 

Cincinnati  v.  White,  52. 

Clader  v.  Tlioinas,  73. 
Clagett  V.  Con  lee,  602. 
Clailx»rne  v.  Ilohnes,  73. 
Clapp  V.  Stought)n,  365. 
Clapp  V.  Pronri'^liam,  608. 
Clark  V.  Lot,  510. 
Clark  V.  P.(K>riit:iii'H  ExVs,  417. 
Clark  V.  Coimi-r.  506. 
Clark  V.  Bohwoi  tli,  (Sm. 
Clark  V,  T«-nnis<»ii.  422,  428. 
Clark  V,  MarKh;»ll,  »,  056, 
Clark  V,  Hrahanj,  2'J,  101,  289. 
Clark  V.  Bakor.  44.  120,  301. 
Clark  V.  C.H.lidK",  U. 
Cljirk  V.  W.thy.  102. 


Clark  V.Hall,  115. 
Clark  V.  Clark,  263. 
Clark  V.  Manfg.  Co.,  235. 
Clark  V.  Sawyer,  300. 
Clark  V.  Heniy,  373,  379. 
Clarke  v.  Martin,  200,  252. 
Clarke  v.  Clarke,  307,  606. 
Clarke  v.  Rowan,  258. 
Clark  V.  Boorman's  Ex'rs,  354. 
Clark  V.  Hugos,  608. 
Claunch  v.    Allen,  239. 
Clayton  v.  IMerritt,  243. 
Clayton  v.  Wardell,  590. 
Clements  v.  Lamkin,  599. 
Clery  v.  Hinman,  559. 
Close  V.  Samm,  602. 
Coats  V.  Taft,  194,  221. 
Cobble  V.  Tonilinson,  273. 
Coburn  v.  Ames.  150,  103. 
Coburn  v.  EUenwood,  124. 
Cockerel  v.  Coleman,  575. 
Coffee  V.  Silvan,  510. 
Coffin  V.  Taylor,  400. 
Cofran  v.  Cofran,  363. 
Cohen  v.  Shard.  636. 
Cole  V.  Kimball.  203. 
Coles  V.  Wlthei-s.  383. 
Cole  V.  Rachac,  67. 
Coleman  v.  Allen,  118. 
Coleman  v.  R.  R.  Co..  274. 
Coleman  v.  Billings,  603. 
Coleman  V.  Improvement  Co.,  191, 

196. 
CoUame  v.  Langdon,  375. 
Collins  V.  Bartlett.  154. 
Collins  V.  Marcy.  251. 
C/ollins  V.  AVarn-n,  273. 
Collins  V.  M<'gra\v.  -101. 
Collamfr  v.  Langdon,  319. 
Collamore  v.  Wilder.  583. 
Collier  V.  Blake,  300. 
C4)Ilicr  V.  Va.son.  41)0. 
Collier  V.  firimsi'v,  423. 
Collier's  Case,  -127. 
Colhon  V.  'riioni]>snn,  511. 
Comer  v.  Baldwin,  171. 


xxxvm 


TA15LE    OF    CASKS, 


Comnioiiwealtli  v.  Al;;or,  IG. 
Cominonwfultli  v.  Ti'wkshury,  13. 
Coiniiumwoalth  v.  Jackson,  17-1, 
Coininonwt'alth  v.  Andre,  45. 
Coniniissionoi's  v.  Babcock,  65. 
Commissioners  v.  Rusli,  181. 
Commissioners    v.    Brackeni-idge, 

478. 
Comstock  V.  Crawford,  37. 
Comstock  V.  Smitli,  23G,  238. 
Conant  v.  Little,  544. 
Congregational  Society  v.   Stark, 

278. 
Conklin  v.  Foster,  499. 
Connard  v.  Colgan,  211. 
Conner  v.  Whitehouse,  340. 
Connor  v.  Banks,  398. 
Connor  v.  Whitmore,  400. 
Conover  v.  Musgrave,  504. 
Conover  v.  Warren,  453. 
Conrad  v.  Ins.  Co.,  473. 
Conroy  v.  Perry,  461,^ 
Cook  V.  Sinnanion,  218. 
Cook  V.  So.  Pk.  Com'i-3,  57. 
Cook  V.  Barr,  294. 
Cook  V.  Clark,  387. 
Cook  V.  Holmes,  413,  427. 
Cooley  V.  Scarlett,  484. 
Coolidge  V.  Learned,  47. 
Coons  V.  Throckmorton,  526. 
Cooper  V,  Ord,  27,  601,  602. 
Cooper  V.  Roberts,  130,  131,  138. 
Cooper  V.  SIcBride,  604. 
Cooper  V.  Cooper,  263. 
Cooper  V.  Whitney,  316. 
Corbin  v.  Healy,  197. 
Corbin  v.  Sullivan,  62. 
Corfield  v.  CorgeU,  579. 
Cormack  v.  Wolcott,  64,  65. 
Corner  v.  Baldwin,  210. 
Corning  v.  Troy  Factory,  522. 
Corning  V.  Gould,  55. 
Cornmg  v.    Troy,    etc.,    Factory, 

604. 
Corwin  v.  Merritt,  318. 
Cost  V.  Rose,  526. 


Costigan  v.  Gould,  155. 

Costly  V.  Driver,  525. 

C,)tton  V.  Reed,  458. 

Covenhoven  v.  Shuler,  351; 

Covington  v.  Stewart,  610. 

Cowan  V.  Foster,  512. 

Cowell  V.    Col.    Springs  Co.,    200, 

251. 
Cowles  V.  Rickett,  327. 
Cowles  V.  Marble,  372,  375,  397. 
Cowl  V.  Varnum,  458,  459. 
Ci)x  v.  James,  145. 
Coxv.  Cox,  577. 
Cox  V.  Halsted,  497. 
Coyce  V.  Stovell,  476. 
C  )ye  v.  Leach,  588. 
Craddock  v.  Stewart's  Adm'r,  299. 
Craig  V.  Radford,  578. 
Craig  V.  Leslie,  435. 
Ci-aig  V.  Dimock,  213. 
Craig  V.  Swinerton,  373. 
Craig  V.  R.  R.  Co.,  57. 
Craig  V.  Wells,  252. 
Cram  v.  Cotting,  553,  555. 
Cramer's  Appeal,  32,  580. 
Crane  v.  Reader,  253. 
Crane  v.  Turner,  400. 
Cranston  v.  Crane,  396. 
Crary  v.  Goodman,  601,  603. 
Crawford  v.  Richeson,  457. 
Crawfoi'd  V.  Spencer,  188. 
Credle  v.  Hays,  195,  198. 
Crispen  v.  Hannavan,  27,  601,  603' 
Ci'ittenden  v.Fairchild,  310. 
Crittenden  v.  Leitensdorfer,  394. 
Croade  v.  Ingi*ahani,  23. 
Crockett  v.  McGuire,  68. 
Crocker  v.  Pierce,'467. 
Crocker  v.  Ballangee,  233. 
Croft  V.  Bunster,  190,  373,  398. 
Croker  v.  Gilbert,  190. 
Cromwell  v.  Ins.  Co.,  346. 
Cronise  v.  Hardt,  317. 
Crocker  v.  Crooker,  76. 
Crooke  v.  Andrews,  636. 
Crook  v.  Liensford,  18. 


TABLE    OF   CASES. 


XXXIX 


Croode  v.  Ingraliam,  23. 
Crosby  v.  Parker,  220. 
Crowell  V.  Johnson,  504. 
Crump  V.  Faucett,  577. 
Cry  tier's  App3.il,  303, 
Caendet  v.  Lohiuir,  323. 
Cuniminp^  v.  Ciinimings,  511. 
Cunimings  v.  Pliiinmer,  419. 
Cunningham  v.  Wx-enn,  458. 
Cunningham  v.  Curtis,  195. 
Cunningham  v.  Ashley,  94. 
Curd  V.  Lackland,  492. 
Curren  v.  Taylor,  32,  580. 
Curry  v.  Hinnian,  524. 
Curry  v.  Spencer,  551. 
Curtis  V.  Root,  475,  503. 
Curtis  V.  Smith,  296,  306,  561. 
Curtis  V.  Lyman,  75. 
Cushaman  v.  Glover,  243. 
Cutler  V.  Davenport,  331,  400. 
Cutler  V.  Tufts,  228. 
Cutright  V.  Stanford,  582. 
Curwen  v.  Taylor,  28. 

D'Armond  v.  Du1x)se,  214. 

D.iiley  v.  Litchfield,  10. 

Dile  V.  Lincoln,  185,  211. 

Dale  V.  Shively,  202. 

Dalton  v.  Lamhurth,  531. 

Daltim  V.  Lucas,  570. 

Damon  v.  Bil)ben,  421. 

Danforth  v.  Lowry,  294. 

Daniel  v.  Purvis,  148, 

Daniel  v.  L<'itch,  256. 

Daniel  v.  Hodges,  467. 

Daniel  v.  Whartenljy,  416. 

D  irst  V.  Bat-H,  187. 

D  irt:ii.mth  College  v.  Woodward, 

149. 
DivenjK)rt  V.  Whi.stliT,  311. 
Davidson  v.  S vgar,  6:59. 
D,ivid.Hon  v.  Van  P.lt,  248,  633. 
Daviif  V.  HriggH,  5->6. 
D.iviri  V.  Mr-Donald.  267. 
Divi.s  V.  Savii)g«  Hank,  291. 
D.iviav.  Alvord,  460,  461. 


Davis  V.  Life  Tns.  Co..  ''jo. 
Davis  v.  Hamilton,  324,  407. 
Davis  V.  Ransom,  494. 
Davis  V.  Henderson,  343,  633. 
Davis  V.  Easly,  603. 
Day  V.  Wilder,  605. 
Day  v.  Micon,  60. 
Dayton  v.  Mintzer,  511. 
De  Camp  v.  Dobbins,  276. 
De  Wolf  v.  Hayden,  44,  2C7. 
De  Pan  v.'New  Albany,  473. 
Dean  v.  Bittner,  147,  118. 
Deerfield  v.  Arms,  49. 
Deford  v.  Deford,  410. 
Deiningcr  v.  McConnell,  211. 
De  Kay  v.  Irving,  411. 
Delancy  v.  Ganong,  355. 
Delano  v.  Bennett,  399,  400. 
Delaunay  v.  Burnet,  119. 
De  Laureal  v.  Kemper,  404.' 
Delevan  v.  Duncan,  348,  603. 
Dement  v.  Thompson,  495. 
Denton  v.  Jackson,  232. 
Dennett  v.  Dennett,  419. 
Den  V.  Troutman,  403. 
Den  V.  Despreaux,  299. 
Dennis  v.  Maynard,  453. 
Dequindre  v.  Williams,  46. 
Dew  v.  Dellingor,  342. 
Dewey  v.  McLain.  60. 
Devries  v.  Haywood,  45. 
Deyer  v.  Homer,  254. 
Dickenson  v.  Breedan,  570. 
Dickson  v.  Randal,  219. 
Dickson  v.  Rawson,  327. 
Dickson  v.  Todd,  464. 
Dickins  v.  Barnes,  221. 
Dike,s  v.  Milli-r,  55. 
Dill  v.  Winner,  435. 
Dills  V.  Hubbard.  «{)2,  60t. 
Diilman  v.  Weiitwortli,  25. 
Dillon  V.  Brown.  22H. 
Dillingham  v.  Kisher,  117. 
Dillingham  v.  Brown,  571. 
DingU-y  v.  Bank,  3si. 
Dingli-y  v.  Boston,  58. 


xl 


TALLE    UF    CASES. 


Dingnian  v.  People,  149. 

Diukins  v.  Bowci-s,  -151),  461. 

Disque  v.  Wright,  393. 

Dix  V.  Palinor,  45;^. 

Dixon  V.  Dixdii,  473, 

Dixon  V.  Mcnitt,  38. 

Dobbins  v.  AVilson,  473. 

Dodd  V.  Williams,  4-1,  93,  93.   G4G, 

653. 
Dodge  V.  Hopkins,  289. 
Dodge  V.  Steven-s,  321. 
Dodge  V.  Beller,  577,  580. 
Dodge's  Appcixl.  580. 
Doe  V.  Hardy,  316. 
Doa  V.  Governeur,  578. 
Doe  V.  Jackson,  333.  , 

Doev.  Eslava,  604. 
Dogan  V.  Griffin,  554. 
Dolde  V.  Vodieka,  175. 
Dole  V.  Thurlow,  206,  208. 
Donald  v.  Gregory,  43. 
Donald  v.  Bear  River  Co.,  288. 
Danakbon  v;  Hobnes,  393. 
Donaldson  v.  Hibncr,  45. 
Donahue  v.  Chase,  315. 
Donnelly  v.  Turner,  414. 
Dooly  V.  Walcott,  70. 
Doolittle  V.  Jenkins,  459. 
Doran  v.  Mullen,  204. 
DoiT  V.  Han-ahan,  200. 
Dorland  v.  Magilton,  607. 
Dorsey  v.  Kendall.  500. 
Dorsey  V.  R.  R.  Co.,  867. 
Douglass  V.  Hanston,  406. 
Douglass  V.  Dangerfield,  560. 
l)ousoman  v.  Hooe,  148,  484. 
Doutbitt  V.  Stin^:on,  183,  185. 
Dou  V.  Don,  348. 
Dow  V.  Lewis,  191. 
Dow  V.  Dow,  409. 
Dow  V.  McKennedy,  605. 
Downey  v.  Borden,  424. 
Downing  v.  Mai-shall,  310. 
Downer  V.  R.  R.  Co.,  48. 
Drake  v.  Kinsell,  21. 
Drayton  v.  Maishali,  373. 


Draper  v.  Bryson,  303. 
Drcssel  v.  Jordan,  235. 
Drew  V.  Smith,  195. 
Drusadow  v.  Wilde,  423. 
Drydcn  v.  Ilanway,  257. 
Dublin  V.  Chadbourn,  380. 
Ducat  V.  Chicago,  274. 
Dudley  v.  Sumner,  353. 
Duir  V.  Bc'auchamp,  263. 
Dugan  V.  Follctt,  r,22,  533. 
Dunbar  v.  Newman,  458. 
Duncan  v.  Duncan,  550. 
Dundee  Mtg.  Co.  v.  Huges,  8,  653, 

654,  655. 
Dunkin  v.  Wilson,  483. 
Dunklee  v.  Crane,  459,  640, 
Dugan  V.  FoUett,  503,  G;)7,  603. 
Dunlap  V.  Gallatin  Co.,  456,  553, 

555,  557,  558. 
Dunlap  V.  Bullard,  303. 
Dunlap  V.  Dunlap,  354. 
Dunleith  v.  Reynolds,  553. 
Dunn  V.  Ketchum,  370. 
Dunn  V.  SneU,  560, 
Dunn  V.  Gaines,  316. 
Dunning  v.  Ocean  Nat.  Bank,  331. 
Dunning  v.  Van  Dusen,  435,  436. 
Duplessi  s  V.  Kennedy,  587. 
Dupont  V.  Davis,  195. 
Dupuy  V.  Leavenworth,  273. 
Durett  v.  Briggs,  299. 
Durfree  v.  Pavitt,  257, 
Dm-ham  v.  Heaton,  499, 
Duryea  v.  New  York,  198. 
Dwight  V,  Overton,  331, 
Dwight  V.  Packard,  194, 
Dyer  v.  Clark,  327. 
Dyer  v.  Homer,  213. 

Eames  v.  Tumverein,  483, 
Eastman  v.  Porter,  471,  481. 
Eaton  V,  Trowbridge,  213, 
Eaton  V.  Simmonds,  256. 
Eaton  V.  Brj^an,  583. 
Eaton  v.  Ryan,  493. 
Eaton  v.  W^hite,  504. 


TABLE    OF    CASES. 


xli 


Edgerton  v.  Bird,  27,  GOl. 

EdwaRls  V.  Bi'.jb,  411,  419. 

Edwards  v.  Rays,  211. 

Edwartls  v.  Tium'oiill,  380. 

Edwards  v.  Barnard,  416. 

Eideniiller  v.  "Wyandotte  City,  57. 

Egery  v.  AVoodiud,  210. 

Eldridge  v.  Pierce,  20. 

Eldred  v.  Sexton,  116. 

Elder  V.  Deyby,  377. 

Elmdorf  v.  Lockwood,   22,  23,   24. 

Ellis  v.R.  R.  Co.,  394. 

Elliott  V.  Sleeper,  176. 

Elliott  V.  Armstrong,  294. 

Elliott  V.  Wood,  S97. 

Elliott  V.  Morris.  294. 

Elliott  V.  Pearle,  002. 

Ellison  V.  AVinslow,  67. 

Ellison  V.  Daniels,  400. 

Ellsworth  V.  Lockwood,  479, 

Ellsworth  V.  R.  R.,  212. 

EUwell  V   Shaw,  2;-7. 

Einmison  v.  Whitlosoy,  423. 

Emory  v.  Keighan,  401. 

Enfield  v.  Permit.  45. 

Equitable Ti-ust  Co.  v.  Fi.sher,  394. 

Errissmaun  v.  Errissmanii,  546. 

Espy  V.  Anderson,  10. 

Ethell  V.  Nichols,  513. 

Evans  v,  DavLs,  495. 

Evans  v.  Ashley,  505. 

Evans  v.  Edwards,  190. 

Evans  v.  Hudson,  413. 

Evertson  v.  Sawyer,  494,  500. 

Ewins  V.  Gordon,  345,  351. 

Fairman  v.  Beal,  360. 

I'alkner  v.  Guild,  512. 

F.uinin  Co.  v.  Ridilie,  45. 

Farrington  v.WiLson,  512. 

Fairman  v.  IJcal,  425. 

Fari.s  v.  Dunn,  29-1. 

F.tri^ii  V.  Co<jn,  45,    163,    421,    003, 

WJ5. 
FiirtinTs'  Bank  v.  M<-r<hrmt.  455. 
liiriiierh'  Bank  v.  I'etciii,  5U3. 


Farnham  v.  nildreth,  4SG. 
Fanisworth  v.  Cole,  545. 
Farnum  v.  Petei-son,  254. 
Farrington  v.  Wilson,  512. 
FarweU  v.  Rogere,  253. 
-  Fast  V.  McPhei-son,  294. 
Faucett  v.  Faucett,  303. 
Faulk  V.  Cobui-n.  249. 
Faulke  v.  Bond,  608. 
Feai'ing  v.  Swift,  416. 
Feaster  v.  Fleming,  493. 
Felule  V.  Turner,  533. 
Feit  Vj  Vannata,  419. 
Felecher  v.  Peck,  49. 
Fell  V.  Young,  318. 
Fellows  Bank  v.  Banton,  334. 
Feltman  V.  Butts,  411. 
Fenn  v.  Holmes,  27,  160. 
Fenner  v.  Tucker,  497. 
Fenton  v.  Reed,  510. 
Fergus  v.  Woodwaiil,  494,  500. 
Fergusen  v.  ililes,  301. 
Ferris  v.  Crow,  524. 
Fetrow  v.  Merriweather,  158. 
Fiege  v.  Gavvey.  21. 
Field  V,  Seabury,  148, 
Finley  v.  Bi"own,  506. 
Finley  v.  St-ele,  233. 
Finney  v.  Boyd,  401. 
Fire  Ins.  Co.  v.  Doll,  289. 
Fire  Ins.  Co.  v.  Looinis,  503. 
Fislier  v.  Fields,  19,  293. 
Fishery.  Hall,  210. 
Fisher  v.  Forbes,  257. 
Fisher  v.  Provin,  218. 
Fishery.  Beck  with,  210. 
Fisher  v.  Butcher,  212.  224. 
FisluT  V.  Eslaman,  299. 
Fish  V.  Lightner,  181. 
Fisiiback  v.  Wcavi-r,  501. 
Fisk  v.  FU.res.r.Ki,  2'J9. 
Fi.sk  v.  Kellogg, -111. 
Fisk  v.  T«»lman,  212. 
Fi^hh-r's  A|>|M'al,  522. 
ViUh  V.  Willard.  291. 
Filch  V.  Boyer,  5U9,  510. 


xlii 


TADLE    OF   CASES. 


Firtli  V.  Lri'.vrrnco,  308. 
Fitzgt'ial.l  V,  Fit/.gnald,  173. 
FitzgiTald  V.  S[)aiii,  560. 
Fitzgerald  v.  Glaiuy,  583. 
Fitzgibbon  v.  Lako,  269, 
Fitzhugh  V.  Maxwell,  343. 
Flegev.  Garvey,  21. 
Fleming  v.  McHale,  257. 
Fleming  v.  Johnson,  503. 
Flamming  v.  Gii.s\vokl,  009. 
Fletcher  v.  Holmes,  373,   388,  389, 

390,  454. 
Fletclier  v.  Peck,  54. 
Flinn  v.  Owen,  550, 
Flint  V.  Clinton  Co.,  280,  303. 
Florence  v.  Hopkins,  608. 
Florence  v.  Pa.schal,  636. 
Floyd  V.  Herring,  318. 
Fogal  V.  Perro,  607. 
Fogg  V.  Clark,  420. 
Foley  V.  Harrison,    136. 
Foley  V.  McDonald,  318. 
Foltz  V.  Proiise,  575. 
Fonda  v.  Sage,  537,  636. 
Fontaine  v.  Savings  Bank,  174. 
Foote  V.  Bryant,  257. 
Forbes  v.  S  ?annell,  339. 
Ford  V.  Wilson,  603,  003. 
Ford  V.  Doyle,  480. 
Ford  V.  Holmes,  604. 
Ford  V.  Marshall,  607. 
•Forsyth  v.  Small,  51. 
Forest  v.  Jackson,  160. 
Foster  v.  Evans,  536. 
Foster  v.  Young,  43. 
Foubly  V.  Foubly,  197. 
Foulk  V.  Coburn,  398. 
Foulks  V.  Pegg,  400. 
Fowle  V.  Merrill,  263. 
Fowler  v.  Shearer,  288. 
Fowler  v.  Merrill,  315. 
Fox  V.  Phelps,  427. 
Fox  V.  Turtle,  437. 
Fox  V.  Burke,  31. 
Frazer  v.  Peoria  Co.,  250,  430. 
Frazer  v.  Lee,  334. 


Frazor  v.  Thatcher,  472. 

Frances'  Estate,  411,  418. 

Franklin  Co.   v.  Savings  Inst.,  276. 

Franklin  v.  Palmer,  461. 

Franklin  v.  Talmadge,  216. 

Franklyn  v.  Hayward,  370. 

Frederick  v.  Haas,  814. 

Frederick  v.  Pac(iuette,  511. 

Freedman  v.  Goodwin,  103. 

Fremont  v.  Flower,  131. 

French  v.  Crosby,  33. 

Fnmch  V.  Edwards,  398,  399. 

French  v.  Burns,  374. 

Friidc  V.  Darst,  237. 

Frisbie  v.  Whitney,  118. 

Froneberger  v.  Lews,  324. 

Frost  V.  Beekman,  03. 

Frost  V.  Deering,  223. 

Frost  V.  Bank,  493. 

Fugate  V.  Pierce,  600,  601,  603. 

Fuller  V.  Carr,  184. 

Fuller  V.  Jillett,  302. 

Fuller  V.  Fellow,  323. 

Fulton  V.  Hill,  413. 

Fulton  V.  Moore,  505. 

Fmik  V.    Eggleston,  435,  430,  437, 

437,  010. 
Furgoson  v.  Jones,  585. 
Furgusen  v.  Mason,  346. 
Fiuuas  V.  Durgin,  255. 

G.  B.  &  M.  C.  Co.  V.  Groat,  298. 
Gadberry  v.  Sheppard,  253. 
Gage  v.  Schroder,  516. 
Gaines  v.  Hale.  115. 
Gairity  v.  Russell,  534. 
Galaway  v.Milchon,  337,  334. 
Gale  v.  Kinzie,  50. 
Gale  V.  Wilson,  350. 
Gallagher's  Appeal,  371 . 
Galaway  v.  Malchon,  385,  393. 
Galloway  v.  Finley,  100. 
Galpin  v.  Abljott,  73. 
Galpin  v.  Page.  539. 
Gammon  v.  Hodges,  64. 
Gambert  v.  Hart,  654. 


TABLE    OF   CASES. 


xliii 


Gans  V.  Renshaw,  633. 
Gardener  v.  Moore.  3S8. 
Garder  v.  Collins,  28. 
Gardiner  v.  Miller.  47.  609. 
Gardner  V.  Com.  Nat.  Bk.,328,  331. 
Gardner  v.  Ja^ues,  302. 
Gardner  v.  Eberhart.  505 
Gardner  v.  Gran  n  is,  212. 
Gardner  v.  Gai-dner,  308. 
Gardner  v.  Hej^er,  432. 
Garland  v.  Britton,  524. 
Garnett  v.  Gamett,  183. 
Garnsey  v.  Rogei-s,  256,  387. 
Garret  v.  Moss,  184. 
Garrett  v.  Lynch,  491. 
Garrison  v.  Rudd,  3G6. 
Gas  Co.  V.  San  Francisco,  363. 
Giiskill  V.  Badge,  63. 
Gates  V.  Labeaume,  328. 
Gates  V.  Caldwell,  201. 
Gates  V.  Preston,  471. 
Gault  V.  Woodbridge,  495. 
Gay  V.  Walker,  198. 
Gayetty  v.  Bethune,  47. 
Gay  lord  v.  Dodge,  22. 
Gavin  v.  Shuman,  570. 
Geary  v.  Simmons,  471,  481, 
Geary  v.  City  of  Kansas,  208. 
Gebhart  v.  Reeves,  362. 
Gebhard  v.  Sattler,  521. 
Geekie  v.  Kirby  Co.,  570. 
George  v.  Kimball,  212. 
German  Ins.  Bk.  v.  Nunes,  328. 
Gernetv.  Lynn,  419,  607,  608. 
G.-yer  v.  Wentzel,  416. 
GiblH  V.  Th.-iycr,  19H,  199. 
GiblxjfLS  V.  Iloag,  315,  3!»7. 
Gil»H<jn  V.  Clioiit<'au,  46,  160,  009. 
Giliwjn  V.  Warden,  273. 
Gi<'Hy  V.  H.  K.  Co.,  58. 
GilTord  v.  Clioat<?,  424. 
GigoB  V.  C«K-liran,  3^14,  541. 
GilU-rt  V.  Cliapin,  415,  433. 
(JiibiTt  V,  Holiiu-H,  211. 
C;il<liriMt  V.  I6a.:{21. 
Gilet*  V.  Lyon,  518. 


Gill  V.  Wood,  2G4. 
Gill  V.  Hoblitt.  525. 
Gillett  V.  Gaffney,  72. 
Gillett  V.  Neaganza.  535. 
Gillilan  v.  Swift,  269. 
Gillham  v.  Mustm,  440. 
Gilkey  v.  Hamilton,  316,  318. 
Gilmore  v.  Sapp,  156. 
Gilpin  v.  Hollengsv^-orth,  415. 
Gissey  v.  R.  R.  Co.,  58. 
Given  v.  Marr,  547. 
Gladsen  v.  Whaley,  531. 
Gittens  v.  Lowry,  601. 
Glancy  v.  Elliott,  560. 
Glass  V.  Ilurlljut,  638. 
Glover  v.  Payn,  381. 
Goddard  v.  Perkins,  467. 
Godfrey  v.  Bradley,  131. 
Godfrey  v.  Valentine,  528. 
Godfrey  v.  Alton,  180. 
Golder  v.  Brewster,  306,  307. 
Goodel  V.  Hibbard,  18. 
Goodrich  v.  Lambert,  407. 
Goodman  v.  Randall,  169. 
Goodspeed  v.  Fuller,  189. 
Goodwin  v.  Goodwin,  271. 
Goodwin  v.  Baldwin,  401. 
Gorham  v.  Arnold,  454. 
Grorman  v.  Stanton,  188. 
Gossard  v.  Fergusen,  505. 
Gossett  V.  Kent,  185,  273. 
Gossom  V.  Donaldson,  494. 
Goudy  v.  Hall,  512. 
Gould  V.  MatluT,  307. 
Gould  v.  SternlK'rg,  533. 
Gould  v.  Day,  211,  560. 
Gould  V.  Hcndrickson,  302. 
Gowan  v.  Join-s,  50 1. 
Grair  v.  5Iiddlet<jn.  236. 
Graham  v.  Bleakie,  502. 
(iraham  v.  Graham,  43,  421. 
(ir.-iiidm  v.  Ilcrnaudez,  205, 
(i  ranger  v.  Avery,  49. 
(Jraiit  v.  Daven|Kirt,  303. 
(iraiit  V.  Fowl.-r,  61)3. 
I  G lantern  v.  Rotjecierrance,  027. 


xliv 


TAULE    OF   CASES. 


Cray  v.  Ulrich,  203. 

f hay  V.  Hayes,  249. 

liray  v.  Blanchard,  253. 

Gi-ay  V.  BriKuanlello,  500. 

Gray  v.  Gray,  471. 

Grayson  v.  Wetklle,  513. 

Graves  v.  Biiren,  56G. 

Graves  v.  Graves,  189. 

Graves  v.  Coutant,  458. 

Grebbin  v.  Davis,  483. 

Green  v.  Liter,  15G. 

Green  v.  Blanchai-d,  13. 

Green  v.  Slayter,  403,  403. 

(Jrecn  v.  Fulsford,  623. 

Green  v.  Carrington,  75. 

Greenby  v.  Kellogg,  203. 

Greenleaf  v.  Bebee,  461. 

Greenwood  v.  Murray,  4'17. 

Gridley  v.  Hopkins,  181. 

Gridley  v.  Watson,  318. 

Gridley  v.  Gridley,  370. 

Gridley  v.  Philips,  316,  318. 

Griflln  v.  Rogers,  327. 

Griffin  v.  Proctor,  332. 

Griffin  v.  Slieffield,  208. 

Griffin  v.  Page,  510. 

Grignon's  Lessee  v.  Astor,  114,  148, 

520. 
Grimes  V.  Orrand,  185. 
Grinistone  v.  Carter,  381. 
Griswold  v.  Smith,  638, 
Griswold  v.  Fuller,  636. 
Grogan  v.  San  Francisco,  3G3. 
Grjner  v.  Smith,  205. 
Grout  V.  Townsend,  190. 
Grove  v.  Gather,  460. 
Gioverv.  Hale,  308,  311,  315. 
Grube  v.  Wells,  600,  603. 
Grundies  v.  Reid,  486. 
Gaild  V.  Richartls,  199. 
Guild  V.  Hall,  476. 
Guilford  v.  Love,  510. 
Guion  V.  Pickett,  20,  293. 
Gulden  v.  O'Bryne,  387. 
(nilf  R.  R.  Co.  V.  Owen,  606. 
Guiiton  V.  Zautzinger,  501. 


Guyerv.  Wookcy,  534. 
Guynne  v.  Noiswanger,  565. 

Hackett  v.  Callander,  638. 
Hadden  v.  Slioutz,  230. 
Haddock  v.  Haddock,  536. 
ILigue  V.  West  Hoboken,  370. 
Halm  V.  Kelly,  510. 
Haii-ston  v.  Jandon,  343. 
Haldeman  v.  R.  R.  Co.,  58. 
Hale  V.  Woods,  288. 
Haley  v.  Boston,  418. 
Halifax  v.  Stark,  197. 
Hall  V.  Ashby,  243,  253. 
Hall  V.  Jarvis,  41, 136,  148. 
Hall  V.  Leoiuu-d,  185,  219. 
Hall  V.  Bumpstead,  224. 
Hall  V.  Chapman,  513. 
HaU  V.  Hall,  409,  447. 
Hall  V.  Dennison,  330. 
Hall  V.  Mooring,  600. 
Hall  V.  McDuff,  347. 
Hall  V.  Law,  601. 
Hall's  Lessee  v.  Ashby,  243. 
Hallahan  v.  Herbert,  393. 
Halloran  v.  VVliitcomb,  44. 
Halleck  v.  Guy,  505.  . 
Hallett  V,  Wyiie,  354,  355. 
Hallyburton  v.  Carson,  439. 
Hallas  V.  Bell,  603. 
Hamelman  v.  Mounto,  191. 
Hamilton  v.  Lubkee,  315. 
Hamilton  v.  Doolittle,  235. 
Hamilton  v.  Valiant,  563. 
Hamilton  v.  Wright,  603,  604. 
Hamilton  v.  Boggess,  001. 
Hamilton  v.  Porter,  409. 
Hamlin  v.  Express  Co.  ,413, 414,>43-i 
Hammond  v.  Wells,  463. 
Hancock  v.  Wentworth,  85. 
Hand  v.  Winn,  366. 
Handley  v.  Wrightson,  419. 
Hanford  v.  Blessing,  381. 
Hannahs  v.  Felt,  467. 
Hanson  v.  Armstrong,  535. 
Hanson  v.  Vernon,  551. 


TABLE    OF    CASKS. 


xlv 


Hnraden  v.  Larrabee,  419,  5S0. 
Hardin  v.  Crate,  187,  212. 
Hardin  v.  Osborne,  212.  226,  338. 
Hardin  v.  Jones,  536,  .537. 
H:ixdin  v.  Govemeuer,  600. 
Harding  v.  Hale.  256. 
Harding  v.  Strong,  536. 
Harland  v.  Eastman,  590,  634. 
Harman  v.  Oberdorfer,  211. 
Harnage  v.  Berrj',  528. 
Haii)er  v.  Rowe,  509. 
Harpham  v.  Little,  493. 
Harrer  v.  "Waldner,  2G3. 
Harris  Case,  256. 
Harris  Estate,  577. 
Harris  v.  Glenn,  21. 
Harris  v.  Lester,  370. 
Harris  v.  McGovern,  610. 
Harris  v.  Fly,  435. 
Harrington  v.  Fish,  105,  207,  324. 
Harrington  v.  Williams,  537. 
Harrington  v.  Fortner,  388. 
Harrison  v.  Boring,  181. 
Harrison  v.  Philliijs'  Academy,  187. 
Hanison  v.  Simmons,  217. 
Harrinian  v.  Gray,  236. 
Hanyman  v.  Star,  501. 
Hai-shaw  v.  Mclvesson,  543. 
Hart  V.  Stone.  363. 
Hart  V.  Chalk.r,  .393. 
Hart  V.  Smith,  566. 
Hart  V.  Lyon,  367. 
Hart  V.  Gregg,  286. 
Hartford  Ore  Co.  v.  Miller,  270. 
Harthill,  In  re,  334. 
Hartflhorn  v.  Dawsr^n,  224. 
Harvey  v.  Lwlbetter,  214. 
Harvey  v.  Varney,  25  K 
Harvey  v.  Snlh-n's  Heirs,  411. 
Ha-skill  V.  Sevier,   '.88. 
Ha.stingH  v.  Johnson,  494. 
H;L>.tingH  v.  Cutl<T.  73. 
Hat'h  v.  R.  R.  Co..  .56,  57,  518, 
H.it'h  V.  Hatch.  155. 
Hatrh  v.  Bat<-M.  191. 
Uat<:lj  V.  UulFalo.  630. 


Hatch  V.  Bullock,  G06. 
Hanghwout  v.  Murphy,  464. 
Havens  v.  Sherman,  421,  491. 
Havei-stick"s  Appeal,  419, 
Hawk  V,  McCullough,  191,  233. 
Hawkins  v.  Chapman,  192. 
Hawkms  v.  Hawkms,  504. 
Haworth  v.  HuUng,  416. 
Haworth  v.  Taylor,  82. 
Ilawley  v,  Northampton,  435. 
Hawley  v,  Moi-se,  69, 
Hawyiu'd  V.  Ormsbee,  111,  114. 
Haxton  y.  Coai-se,  498. 
Hayden  v,  Bucklin,  403,  465,   523. 
Hay  den  v.  Stoughton,  410. 
Haydock  v.  Stow,  344. 
Hayes  v.  Livingston,  45. 
Hayes  v.  Stiger,  503. 
Ha5'es  v,  Fessenden,  460. 
Haynes  v.  Bourn,  16,  574. 
Hayncs  v.  Boardman,  605. 
Haydock  v.  Stow,  289. 
Hays  V.  Russell,  508. 
Hay  ward  v.  Ormsbee,  111,  114,  270. 
Haywood  v.  Collins,  467,  525. 
Haworth  v.  Huling,  484, 
Haxton  v.  Coi"se,  575, 
Hazel  V,  Hagan,  424,  425. 
Headley  v,  Gaundry,  403. 
Htaton  V.  Fryberger,  184. 
Heai-st  V.  Pugol,  458, 
Hect  V',  Speai-s,  458, 
Hcdrick  v.  Hughes,  138. 
Ikllreigil  v.  Manning,  218,  633, 
Hemingway  v.  Scales,  218, 
Hemphill  v,  Davies,  118, 
Hemstreet  v,  Burdiek,  289, 
Henderson  v,  Fcn'd,  291, 
Iliiidf-rs  m  V,  Whiiinger,  320. 
Hfiidcrson  v.  Downing,  328, 
Htiidrick  v.  Cleveland,  520. 
II. •11(11. -y  V.  B.ic<-us,  526, 
H.Mily  V.  Hotiiling,  3K1. 
Ili-nning  v.  Punnet,  503. 
Ht-nning  v.  Vanicr,  413. 
Heiialey  v.  Baker.  493. 


xlvi 


TABLE    OF    CASES. 


Henstis  v.  Johnston,  447. 
Herman  v.  Dv'niinp:,  38.1,  393. 
Ht'rrington  v.  Willianas,  537. 
Ik'i-ringUm  V.  McColluni,  4(35. 
lU-ss  V.  Voss,  521. 
lIotzL'l  V.  BailRT,  20. 
lleiisci-  V.  Harris,  418. 
Heustis  V.  Johnson,  520. 
Howes  V.  Rois,  553,  556. 
llevward  v.  New  York.  58. 
Hickman  v.  Quinn,  249. 
Hickox  V.  Greenwood,  460. 
Hicks  V.  Skinner,  493. 
Hickman  v.  Perrin,  391. 
IIi-l)ee  V.  Rice,  71. 
Hightower  v.  Rigsbj',  458. 
Hightower  v.  Handlin,  494. 
Hiliheth  v.  Thompson,  495. 
Hill  V.  Franklyn,  21. 
Hill  V.  Treat,  408,  455,  585. 
Hill  V.  Epley,  67. 
Hill  V.  Miller,  154. 
Hill  V.  Ressegien,  294. 
Hill  V.  Wall,  489. 
Hillis  V.  Hillis,  438. 
Himes  v.  Keighbhnger,  174. 
Hines  v.  Perkins,  382. 
Hinkley  v.  Greene,  27,  603. 
Hinman  v.  Warren,  163. 
Hinsdale  v.  Tliornton   301. 
Hinson  v.  Adrian,  544. 
Hinton  v.  Milburn.  419. 
Hess  V.  McCabe,  225. 
Hitchcock  V.  Merrick,  399. 
Hoai'd  V.  Hoard,  441. 
Hobson  V.  Ewan,  493. 
Hochlander  v.  Hochlander,  526. 
Hoffman  v.  Mackall,  331. 
Hoffman  v.  Stigers,  263. 
Hoffman  v.  Felt,  348. 
Hogans  v.  Carruth,  207,  227. 
Holand  v.  Shurtleff,  401. 
Holbrook  v.  Dickinson,  339,  554. 
Holbrook  v.  Debo,  237,  238,  239. 
Holder  v.  Mount.  581. 
Holdane  v.  Cold  Spring,  256. 


Hallway  v.  Gallway,  441. 
Holland  V.  Fuller,  272. 
Holland  v.  Holmes,  348,  633. 
IloUman  v.  DeNyse,  266. 
Holmv.  Wust,  11. 
Holman  v.  Gill,   300,  303. 
Holmes  v.  Seely,  25. 
Holmes  v.  R.  R.  Co.,  55. 
Holmes  v.  Janet  Moore,  249. 
Holmes  v.  Carondolet,  535. 
Holmes  v.  Shaver,  492. 
Holmes  v.  McGinty,  398. 
Holmes  v.  Evans,  344. 
Holmes  v.  Mead.  431,442. 
Honswyck  v.  Weise,  441. 
Hooker  v.  De  Palos,  541. 
Hoadly  v.  Stephens,  29. 
Hooper  v.  Scheimer,  114,  143. 
Hopping  v.  Burnham,  495. 
Hopkins  v.  McCann,  572. 
Hopkins  v.  Medley,  521,  538. 
Hoppough  v.  Sti'uble,  461. 
Hoppin  v.  Doty,  606,  639. 
Hopping  V.  Burnam,  425. 
Hopson  v.  Commonwealth,  356. 
Horn  V.  Cole,  44. 
Hornbeck  v.  Westbrook,  185, 186. 
Horner  v.  Zimmerman,  254. 
Hosmer  v.  Campbell,  314,  315,  316. 
Hot  Springs  Cases,  116. 
Hotchkiss  v.  Cutting,  504,  524. 
llouck  V.  Yates,  174. 
Hough  V.  Land  Co.,  276,  278. 
Houghton  V.  Kendall,  419. 
Houghton  V.  Hardenburg,  156. 
Houseman  v.  Girard   Loan  Ass'n, 

8,  653. 
Housley  v.  Lindsay,  430. 
Houston  V.  Blackman,  191. 
Houston  V.  Houston,  474. 
Houx  V.  Batteen,  204. 
How  V.  Mortell,  458. 
Howard  v.  Howard,  604. 
Howard  v.  Kennedy,  522. 
Howe  v.  Thayer,  65. 
Howe  V.  Williams,  222. 


TADLE    OF    CASKS. 


xlvii 


Ho^%'e  V.  Hutchinson,  11. 

Howe  V.  Howe,  '^11. 

Howland  v.  Blake,  209. 

Howlandv.  Cemetery  ^Vssoc'n,  611. 

Howerter  v.  Kelly,  525. 

Hoy  V.  Allen,  208. 

Hoyt  V.  Kimball,  199,  253. 

Hoyt  V.  Swar.  2G."). 

Huber  v.  Huber,  264. 

Huber  v.  Gazley,  150. 

Hubbard  v.  Bell,  48. 

Hmlson  v.  Putney,  604. 

Hudson  V.  Poindexter,  205. 

Huebsch  v.  Schell,  378. 

Huftalin  v.  :Mi.sner,  508. 

Hughes  V.  Washinjj^on,  307. 

Hughes  V.  Watt,  300,  510. 

Hulett  V.  Inlow,  263. 

Huls  V.  Bunten,  603. 

Humbert  v.  Trinity  Ch.,  600,  604. 

Hunger  ford's  Appeal,  481. 

Hunnicut  v.  Pej'ton,  603. 

Hunt  V.  Rowley,  80. 

Hunt  V.  Hunt,  47,  420. 

Hunt  V.  Jolinson,  190,  263. 

Hunt  V.  Amidon,  201. 

Hunt  V.  Bridge  Co.,  275. 

Hunt  V.  Cliosen  Friends,  77,  590. 

Hunt  V.  White,  412. 

Hunt  V.  Haven,  522. 

Huntt  V.  Townsend,  307,  310. 

Hunter  v.  Vaughn,  296. 

Hunter  v.  Buckner,  393. 

Hunting  v.  Walter,  304,  503,  503. 

Hunton  V.  Nichols,  610. 

Hurley  v.  Estes,  374. 

Husbands  v.  Jones,  467. 

Huston  V.  Seelcy,  206. 

Huteiiens  v.  Doe,  494. 

Hut'-liing8  V.  L(jw,  115. 

Hutchins  V.  Carleton,  233. 

Hutoliinson  v.  R.  R.  Co.,  233. 

Hutton  V.  Williams,  505. 

Hyain  v.  Edwanls,  587. 

Hyde  V.  Olds.  :{:50. 

Hyde  v.  Taiiii.r,  583. 


Hyde  Pai-k  v,  Borden,  362. 
H3-di-aulic    Co.   v.    Loughry,   473, 
475. 

I.  C.  R.  R.  Co.  V.  Stewart,  238. 
111.  Land  &  Loan  Co.  v.  Bonner, 

590. 
Imp.  Fire  Ins.  Co.  v.  Gunning,  519. 
Ingals  V.  Planiondou,  641. 
In  re  Gas  Co.,  51. 
In  re  McLean,  58. 
In  re  Lewis,  327. 
In  re  ISIuUer,  334. 
In  re  Carow,  334. 
In  re  Sands  Brewing  Co. ,  386. 
Indianapolis  II.  R.  Co.  v.  Ross,  604. 
Ingle  V.  Jones,  321. 
Ingraham  v.  Grigg,  329. 
Ins.  Co.  V.  Norton.  54. 
Ins.  Co.  V.  Dake,  75. 
Ins.  Co.  V.  Scales,  564. 
Ins.  Co.  V.  Eldridge,  403. 
Ins.  Co.  V.  Stewart,  255. 
Irvine  v.  Marshall,  110. 
Irving  V.  Brownell,  226,  600. 
Irwin  V.  Dixon,  180. 
Isett  V.  Stuart,  524. 
Isiiam  V.  Bennington  Co.,  225, 
Ishmeal  v.  Parker,  541. 
Isler  V.  Brown,  467. 
Ivy  V.  Clawson,  531. 


Jackson  v. 
Jackson  v. 
Jackson  v. 
Jackson  v. 
Jackson  v. 
Jackson  v. 
Jackson  v. 
Jackson  v. 
Jackson  v. 
Jackson  v. 
Jackson  v. 
Ja<kson  v. 
Jackson  v. 
Juck.sun  V. 


Ingraham,  15. 
Hart,  15. 

Vandcrheyden,  23. 
Elston,  70. 
Warren,  76.  523. 
Cary,  186,  220. 
Schoonmaker,  187. 
Bard,  187.- 
Leek,  189. 
Dilkm,  190. 
Meyers,  192,  230. 
I't'ikiiis.  174. 
Hudson.  231. 
Kosvill,  231. 


xlviii 


TAIil.K    OF    CASES. 


Jackson  v.  Rii-'son,  0  lO. 
Jackson  v.  Ht'iiry,  2.'54. 
Jacks(jn  v.  Canipboll,   279. 
Jackson  v.  Bush,  3U2. 
Jackson  v.  Hap:anian,  303. 
Jackson  v.  Spink,  495. 
Jackson  v.  Young,  495. 
Jackson  v.  Hendricks,  575. 
Jackson  v.  Browner,  590. 
Jackson  v.  Berner,  600. 
Jackson  v.  WoodrufT,  602,  003. 
Jackson  v.  Wlioat,  604. 
Jackson  v.  Johnson,  004. 
Jackson  v.  I^Ioore,  609. 
Jackson  v.  Boneliam,  587. 
Jackson  v.  Harscn,  i352. 
Jackson  v.  Delocroix,  353. 
Jackson  v.  Allen,  353. 
Jackson  v.  Bull,  376,  427. 
Jackson  v.  Roberts,  377. 
Jackson  v.  Devitt,  377. 
Jackson  v.  McChesney,  301. 
Jackson  v.  Robbins,  424.' 
Jackson  v.  Williams,  405. 
Jackson  v.  Esty,  564. 
Jackson  v.  Morse.  564. 
Jackson  v.  Littel,  385,  386. 
Jackson  v.  Wood,  401. 
Jackson  v.  Housel,  420. 
Jackson  v.  Hai'ris,  437. 
Jackson  v.  Jackson,  441. 
Jackson  v.  Warren,  463. 
Jackson  v.  Anderson,  493. 
Jackson  v.  Green,  578. 
Jackson  v.  "Winslow,  236. 
Jackson  v.  Veeder,  20. 
James  v.  Moore,  13. 
James  v.  Stiles,  216. 
Janies  v.  James,  410. 
James  v.  ^lorey,  377. 
Jamieson  v.  Hay,  423. 
Jamison  v.  Fop'ana,  307. 
Jamison  v.  Perry,  524. 
Janvrin  v.  Fogg,  214. 
Jarvis  v.  Peck,  553. 
Jassey  v.  White,  425,  616. 


.  Jecks  V.  Tausing,  10. 
J.ffei-s  V.  RadclilT,  37. 
Jelks  V.  Barrett,  205. 
Jenkins  v.  Voltz,  20. 
Jenkins  v.  Rosenburg,  380. 
Jolmson  V.  Mclntosli.  15,  54. 
Jolinson  V.  U.  S.,  45. 
Johnson  v.  Bantock,  191. 
Johnson  v.  Shaw.  213. 
Johnson  v.  Montgomery,  223. 
Johnson  v.  Bush,  236. 
Jolmson  V.  Corbett,  343,  583. 
Johnson  V.  Mendenhall,  348. 
Jolmson  V.  Ilubbell,  351. 
Johnson  v.  Houston,  373. 
Johnson  v.  Stagg,  381,  391. 
Johnson  v.  Cai-penter,  399. 
Johnson  v.  Dodge,  541. 
Johnson  v.  R.  R.  Co. ,  56. 
Jolmson  V.  Quarles,  257. 
Johnson  v.  Geisriter,  334. 
Johnson  v.  Cornett,  400. 
Johnson  v.  Baker,  503,  509. 
Joluiston  V.  Smith,  560. 
John  Hancock  etc.,  Co.  v.  Moore, 

588. 
Jolliff  V.  JollifT,  546. 
Jones  V.  Jolmson,  49. 
Jones  V.  R.  R.  Co.,  201. 
Jones  V.  Franklin,  203. 
Jones  V.  Monroe,  211. 
Jones  V.  Clifton,  260. 
Jones  V.  Carter,  387. 
Jones  V,  Scott,  300. 
Jones  V.   Wood,  341. 
Jones  V.  P>rewer,  388. 
Jones  V.  Bacon,  42^1. 
Jones  V.  Doss,  453. 
Jones  V.  Lapham,  400. 
Jones  V.  Porter,  485. 
Jones  V.  Patterson,  610. 
Jones  V.  Gardner,  633. 
Jones  V.  Jenkins,  640. 
Jones  V.  Devore,  555. 
Jones'  Estate,  487. 
Jordan  v.  Bradshaw,  300. 


TABLE    OF   CASES. 


xlix 


Joseph  r.  Biglow.  188. 
Joy  V.  Berdell,  535. 
Jumel  V.  Juinel,  213. 

Kames  v.  Haq:)er,  482. 
Kaufman  v.  Wliitney,  219. 
Kay  V.  Irving.  411. 
Kayle  v.  Kuvaiiaugh,  347. 
Kayser  v.  Heavonrich,  328. 
Kean  v.  Asli.  533. 
Kearney  v.  Vaughn.  232. 
Kearney  v.  Post,  357. 
Keating  v.  Keating,  546. 
Keegan  v.  Geraghty,   85,   36,    576. 

585. 
Keeler  v.  Keeler,  520. 
Keen  v.  Preston,  327. 
Keith  V.  Keith,  300. 
Kelly  V.  Henilrieks,  45. 
Kelly  v.  McGuire,  590. 
Kelly  V.  Transportation  Co.,  278. 
Keller  v.  Brickey,  148. 
Kellogg  V.  Hale,  264. 
Kennedy  v.  Municipality  No.  2,  50. 
Kennedy  v.  Meiriam,  418. 
Kennedy  v.  Nortlirup,  458. 
Kennedy  v.  People,  525. 
Kennedy  v.  Gaines,  322. 
Kent  V.  Welch.  201. 
Kent  V.  Cantrall,  241. 
Kent  V.  Atlantic  DeLaine  Co.,  245, 

247. 
Kenyon  v.  See,  17,  18. 
Kenzie  v.  Roleson,  413. 
Kerf(K»t  V.  Breckenridge,  466. 
Kerfoot  V.  Cronin,  104,  197. 
Kerr  v.  Dougherty,  410. 
Kerr  v.  Birnie,  211. 
K<rr  V.  Ilitt.On. 
Kerr  v.  Agard,  379. 
Ktt/lmm  V.  li.  R.  Co.,  296. 
Kidfler  v.  Alioltz,  4(W. 
Killev.  Egp.  211. 
Kiinhall  v.  BlaisdHI.  239. 
Kiiiirn  v.  Wt-ipiM-rt,  261. 
King  V.  Ixa,  206. 


King  V.  "Wliiton,  298. 

King  V.  Ruckman,  342.  345. 

King  V.  Y.  M.  Ass'n,  458. 

King  V.  Kent's  heu-s,  440. 

King  V.  Blood,  525. 

King  V.  Goodwin,  493. 

Kingman  v.  Barton,  330. 

Kinsley  v.  Ames,  397. 

Kinsman  V.  Loomis,  195. 

Kirk  V.  Burkholtz.  192. 

Kirk  V.  Vanberg,  301. 

Kirkland  v.  Cox,  294. 

Kister  v.  Reeser,  198. 

Kleppner  v.  Laverty,  419. 

Knapp  V.  Brown,  460. 

Kneeland   v.    Van    Valkenburgh, 

220. 
Knight  V.  "Waterman,  329. 
Knotts  V.  Stearns,  502. 
Knox  V.  Brady,  206. 
Knox  V.  Leidgen,  555. 
Knox  V.  Cleveland,  570. 
Knox  V.  Jones,  434. 
Koehler  v.  Ball,  504. 
Koelle  V.  Knecht,  366. 
Korn  V.  Cutler,  420. 
Kostenlioder  v.  Spotts,  503. 
Kraut  V.  Crawford,  48. 
Kreichbaum  v.  Melton,  385. 
Kruger  v.  Knot,  5G6. 
Kruse  v.  Wilson,  196,  228,  301,  302, 

601,  605. 
Kruse  v.  Scrijw,  81. 
Kruson  v.  Kruson,  534. 
Kurtz  V.  Sponahle.  398. 
Kyle  V.  Kavanagh,  ;M7. 

Laberee  v.  Carleton.  190. 
I  ad<l  V.  Harvey,  -109. 
La  Frainb(.i.se  v.  Crow,  23,  268. 
La  riante  v.  Lee,  3^0. 
I^iird  V.  ftjyle,  IWO. 
I^ike  v.(;ray,  564. 
LalliTstedt  v.  J»-nnings.  109. 
I^imurCo.  V.  CienientH,  IHO. 
Lamar  V.  Turner,  196,  197,  299. 


1 


TABLE    OF   CASES. 


Lamotti  v.  Anderson,  3.16. 
I  aninore  v.  Nissi-n,  48,  174. 
Laiibv.  Davenport,  120,  B91. 
Lamb  v.  Waki-liold,  202,  246. 
Lambert  v.  .Smith,  191. 
Lampman  v.  Milks,  040, 
Land  v.  Keirn,  471,  481. 
Landets  v.  Brant,  303. 
Lane  v.  Soulard,  184. 
Lane  v.  Brock,  1j3. 
Lane  v.  Debenham,  307. 
Lane  v.  Gould,  G0;5. 
Langdon  v.  New  York,  101, 
Langsdale  v.  Foster,  428. 
Langsdale  v.  Mills.  500. 
Ltmgdeau  v.  Ilanes,  53,  140,   141, 

148. 
Lain  v.  Cook,  567. 
Lanier  v.  Bootli,  25,  640. 
Lansing  v.  Smith,  104. 
Laramore  v.  IMinish,  599,  600. 
Lai'ge  V.  Fishcu',  567. 
Lassellv.  Powell,  491,  507. 
Lash  V.  Hardick,  475. 
Latham  v.  Smith,  214. 
Lathrop  v.  Brown,  405. 
Lathrop  v.  Snell,  239. 
Lathrop  v.  Am.  Emig.  Co.,  482. 
Laughlin  v.  Fream,  217. 
Laverty  v.  Moore,  603. 
Lawe  V.  Hyde,  186. 
Lawrence's  Will,  441. 
Lawrence  v.  Fai'ley,  201. 
Lawrence  v.  Ball,  401. 
Lawrence  v.  Belger,  473. 
Lawrence  v.  Fast,  477. 
Lawrence  v.  Englesby,  488. 
Learned  v.  Welton,  367. 
Leazm-e  v.  Hillegas,  276. 
Le  Beau  v.  Arniitage,  53. 
Lee  V.  Ruggles,  537. 
LeemLng  v.  SheiTatt,  423. 
Leese  v.  Clark,  159. 
Lefevre  v.  Lefevre,  432,  433. 
LeFrance  v.  Richmond,  170. 
Legget  V.  Doi'emus,  20. 


Leitcli  V.  WelLs,  76,  523. 

Loiter  v.  Speppard,  18. 

Leiand  v.  Wilson,  298,  300. 

Leonard  v.  Diamond,  294. 

LeMoyne  v.  Quimby,  206. 

LeRoy  v.  Jamison,  154,  156,    158. 

Leupokl  V.  Kruse,  22. 
Levi  V.  Thompson,  135. 

liCvy  V.  Levy,  578. 

Levy  V.  Grimths,  425. 

Lewis  V.  Aylott,  408. 

Lewis  v.  ]\rarshall,  77,  587. 

Lewis  v.  Darling,  409,  437. 

Lewis  V.  Overby,  205. 

Lewis'  Appeal,  42. 

Life  Ass'n  of  America  v.  Fassett, 
480. 

Life  Ins.  Co.  v.  Norton,  01. 

Life  Ins.  Co.  v.  White,  394. 

Lick  V.  Ray,  637. 

Light  V.  West,  503. 

Lindsey  v.  Bates,  458. 

Lindsey  v.  Thompson,  42. 

Lillard  v.  Ruckers,  249. 

Lilly  V.  Palmer,  378. 

Little  V.  Harvey,  474. 

Little  V.  Paddelford,  10. 

Littlejohn  v.  Egerton,  20. 

Littleton  v.  Giddings,  67. 

Lloyd  V.  Bunce,  222. 

Lockett  V.  James,  23. 
Lockwood  V.  R.  R.  Co. ,  48. 
Logan  V.  Steel,  44. 
Logansport  v.  Dunn,  180. 
Lombard  V.  Culbertstand,  75. 
Lombard  v.  Sinai    Congi-egation, 

285. 
Long  v.  Hewitt,  31. 
Long  v.  Wagoner,  194. 
Long  V.  Shelby  Co. ,  360. 
Long  V.  Mostyn,  389. 
Long  V,   Weller,  502,  503. 
Long  V.  Barker,  517,  519. 
Long  V.  Burnett,  567. 
Loom  is  V.  Riley,  300. 
Looney  v.  Adanxson,  223. 


TABLE   OF   CASES. 


li 


Loiighridge  v.  Bowland,  73. 
Loving  V.  Paire,  331. 
Lovering  r,  Allen,  438. 
Lovingston  v.  St.  Clair  Co.,  48, 
Low  V.  Graff,  218. 
Lo\vry  v.  Davis,  392. 
Loyless  v.  Blackshear,  249. 
Lucas  V.  Han-is,  403. 
Luce  V.  Durham,  411. 
Lum  V.  McCarty,  67. 
Lyon  V.  Marsh,  425. 
Lyon  V.  Kain,  216,  573. 
Lytic  V.  Arkansas,  95. 

McAbeev.  Mazzuchelli,  136. 
McAlister  v.  Butterfield,  413. 
McAllister  v.  Plant.  397. 
McAllLster  v.  ^McAllister,  433. 
McAi-thur  V.  Browder,  160. 
McAusland  v.  Pundt,  491. 
McCabe  v.  Ranej^  44. 
McCabee  v.  Mazzuchelli,  165. 
McCall  v.  Niely,  602. 
McCarley  v.  Supervisors,  170. 
McCarty  v.  Carter,  460. 
McCartney  v.  King,  492. 
McChesney  v.  Brown's  Heirs,  261. 
McCready  v.  Sexton,  565,  570. 
McLean  v.  McBean  504,  581. 
McClellan  v.  Darrah,  541. 
McClellan  v.  Kellogg,  600. 
McClintic  v.  Ocheltree,  261. 
McClintock  v.  Rogi-rs,  81. 
McClure  v.  Bums,  399. 
McClurkcn  v.  Logan,  462. 
McClurken  v.   Dctrich,  511. 
McCoinbie  v.  Davis,  462. 
McConnell  v.  Smith,  320. 
McConville  v.  Howell,  578. 
McCoraher  v.  C<jmmonwealth,  107. 
McCormirk  v.  Siillivant,  29. 
McConnack  v.  Pat<hin,  552. 
MfCormJck  v.  HiiKe,  174. 
M<roy  V.  Morrow,  5H2. 
Mcf'iirdy  V.  Canning.  262, 
Mf-Danii-l  v.  JoIiiih,  40. 


McDermid  v.  Russell,  525. 
McDonald  v.  Gregory,  43. 
McDonald  v.  Life  Ins.  Co.,  501. 
McDonald  v.  Edmonds,  143. 
McDuff  v.  Beauchamp,  202,  263. 
Mclntire  v.  Bi'uson,  329. 
Mclntyre  v.  Storey.  519. 
McGan  v.  O'Neil,  530. 
McGarrahan  v.   Mining  Co.,    154, 

157,  158. 
McGinty  v.  McGinty,  294, 
McGoon  V.  Scales.  29,  191. 
McGowanv.  McGowan,  324. 
McGrew  v.  McCarty,  461. 
McGuire  v.  Van  Pelt,  398. 
Mclver  v.  Walker,  161. 
McKinney  v.  Stewart,  31, 
McKinney  v.  Settles,  193, 
McKinzie  v.  Steele,  45. 
McLane  v.  Bovee,  115. 
McLaughlin  v.  McLaughlin,  367. 
McLaughlin  v.  Thompson.  554. 
]\rcLaughlin  v.  Ihnisen,  393. 
McLawrio  v.  Partlow,  294. 
McLean  v.  In  re,  66. 
McLouth  v.  Hurt,  73. 
McMicken  v.  U.  S.,  110. 
]Mc]\IilIan  v.  Warner,  21. 
:\IcMi]lan  v.  Edwards,  303, 
Mc^Iullen  v.  Lank,  306. 
McNeil  v.  Kendall,  358, 
]\IcQuiddy  v.  Ware,  608. 
McQuiev.  Peay,  38H. 
McVey  v.  Mc-Qnaiity.  324. 
^MeWhorter  v.  McMaiion,  344. 
Maliury  v.  \\\\'\7.,  544. 
]\Iack  v.  Brown,  526. 
I\Iack  V.  Wetzler,  373. 
Mackay  v.  Bloodgood,  200. 
Macki.'  v.  CainiH.  328. 
JIaddcn  v.  Banns,  158. 
Magee  v.  Mellon,  299. 
Magruder  v.  Esinay,  115,  143, 
Magru-HH  V.  Arnold,  22-5. 
.Magill  V.  llinsdal.',  2H7. 
Magnoliu  v.  Marshall,  48, 


Ill 


TAULE   OF    CASES. 


^falmrv.  OMIara,  348, 
^^rahoncy  v.  Miiklleton,  530. 
I^Iainv.  Cumstun,  367. 
^laiuleville  v.  Welch,  3-16. 
!Malcoin  v.  Allon,  387. 
:Mallory  v.  Malkuy,  257. 
]\Iallony  v.  Horau,  23,  44,  208. 
Maiulei'sclud  v.  Dubuque,  180. 
Maim  V.  Bfst.  236. 
Mauley  V.  Gibson,  181. 
]\Iaiisfiel(iv.  HoagUuid,  494. 
Mapes  V.  Scott,  144. 
Marbiu-g  v.  Cole,  218. 
Miu-den  V.  Chase,  235. 
Marigold  v.  Barlow,  12. 
:Markwell  v.  Thorne,  448, 
Marling  v.  Marlmg,  541. 
Marsh  v.  Maish,  325. 
Marsh  v.  Chestnut,  558. 
Marsh  v.  Grillin,  605. 
Marshall  v.  Marshall,  530. 
I\Iarshall  v.  Roberts,  236. 
Marshall  v.  Rose,  573. 
^Mai-shman  v.  Conkliu,  484. 
Martm  v.  Martin,  215. 
Martin  v.  Beasley,  318. 
:\rartin  v.  Kirby,  423. 
^Martin  v.  Dryden,  455. 
^Martin  v.  Williams,  489. 
:\Iartin  v.  Judd,  633. 
^lartin  v.  Zellerbach,  44. 
JMartinez  v.  Vives  Succession,  586. 
Marvin  v.  Smith,  24,  208,  294. 
Marvin  v.  Dutcher,  531. 
Matney  v.  Graham,  302. 
:\Iatthews  v.  Skinner,  229. 
Matthews  v.  Eddy,  504. 
Matthews  v.  Demerritt,  639. 
Matter  of  Gilmer,  429. 
Mattis  V.  Robinson,  606. 
Mattox  V.  Higlitshue,  45,  270. 
Mash  V.  Russell.  390. 
!Masheimer  v.  Usleman,  507. 
ilason  V.  Osgood,  320. 
Mason  v.  Gray,  375. 
Mason  v.  Ainsworth,  399. 


]\rason  v.  Brock,  184. 

Mason  v.  Jones,  412. 

Massingill  v.  Downs,  473,  474. 

Mastei-sonv.  Check,  211. 

Mastin  v.  Halley,  224. 

:\Iaul  v.  Rider,  72. 

IMaurior  v.  Coon,  303. 

Maurr  v.  Parisli,  512. 

Maxwell  v.  Jirtiesbro,  305. 

Maxwell  v.  Stewart,  477. 

May  V.  Baker,  467. 

Maybury  v.  Ruiz,  469. 

Mayo  V.  Libby,  148. 

Mayo  V.  W^ood,  43. 

Mayor,  etc.,  v.  McKee,  481. 

Mayor,  etc.,  v.  R.  R.  Co.,  133. 

Mead  v.  Jennings,  411,  418. 

Meader  v.  Norton,  53. 

Meach  v.  Fowler,  155. 

Meachan  v.  Williams,  69. 

Meagher  v,  Thompson,  288. 

Mears  v.  Howarth,  517,  519. 

M.    E.  Church  v.  Hoboken,  51,  52. 

Methodist  Chm-ch  v.  Chicago,  553' 

Meek  v.  Buid<er,  424. 

Meek  v.  Breckenridge,  21.. 

Meeker  v.  Wriglit,  219. 

]\Ieeker  v.  Meeker,  189. 

:\Iectze  V,  Padgett,  507. 

j\lehan  v.  Williams,  459. 

Megerle  v.  Ashe,  137,  148. 

Melvin  v.  Waddel,  527. 

Melvm  V.  Whiting,  47,  608. 

]\IendenhalI  v.  Treadway,  453. 

Meridith  v.  Little,  482. 

Merrick  v.  Ilutt,  467. 

Merrill  v.  Bickford,  430. 

-Alerrill  v.  Emery,  424. 

:yierrill  v.  Burbank,  363. 

Merrill  v,  Burbank,  190. 

I\Ierrill  v.  Montgomery,  526. 

Merritt  v.  Merritt,  21. 

Merritt  v.  Disney,  192. 

Merritt  v.  Brantly,  427. 

Messerschmidt  v.  Baker,  508. 

Metcalfe  v.  Brandon,  211, 


TABLE    OF    CASES. 


liii 


Meufoille  v.  Stewart,  313. 
Jleyer  v.  McDougal,  2G8,  505. 
Meyers  v.  Buchanan,  73. 
Meyers  v.  Croft,  115,  120. 
Meyers  v.  Ladd,  198. 
Meyers  v.  Anderson,  416. 
Meyers  v.  Rasback,  445. 
^leyers  v.  Tyson.  474. 
^leyers  v.  Fegaly,  488. 
:SIiddleton  v.  Smith,  103. 
Middleton  v.  Fmdla,  204. 
Middleton  Sav.  Bk.  v.  Bacharach, 

560,  561. 
Milford  V.  Worcester,  589. 
Millard  v.  McMuUen,  526. 
Miller  v.  Bledsoe,  575,  581. 
Miller  v.  Mills,  526. 
:\rillfr  V.  Ruble,  2W. 
Miller  v.  Ware,  232. 
Miller  v.  Thompson,  255. 
Miller  v.  Corey,  342. 
Miller  V.  Flournoy,  413. 
Miller  v.  Handy,  509,  524. 
Miller  v.  Sherry,  463. 
Miller  V.  Aldrich,  387. 
Miller  V.  Wilson,  301,  493. 
Mi!k-r  v.  Ewing,  236. 
Mdler  v.  Mar.x,  22. 
Miller  v.  Lajiham,  25. 
Milkr  V.  Williams,  31. 
Miller  v.  Hepburn.  50. 
Millett  V.  Pease,  526. 
Mills  V.  Hoag,  480,  481. 
Miltmore  v.  Miltniore,  547. 
Miners  Ditch  Co.  v.  Zt'llerbach,236. 
Mini-s  V.  Mines,  72. 
Mining  CV).  v.  Herkimer,  275. 
Minot  V.  CuitLs.  423. 
Minot  V.  H.  R.  O).,  553. 
Mirfitt  V.  Jcssop,  416, 
Miti.hell  V.  I'.tt.-c.  44. 
Mitchell  V.  Hav.-n.  299. 
Mitchell  V.  Biirnham.  399. 
Mit/li.-Il  V.  W<km1,  472. 
Mit<h«U  V.  Robertson,  5:«. 
MiU-liell  V.  Willianw,  551. 


Mitchell  V.  Bartlett,  210. 
Mix  V.  Fa-ench.  581. 
Moffitt  V.  Moffitt,  512. 
Mohr  V.  Tulip,  512,  514. 
MoLston  V.  Hobbs,  202. 
Jloingona  Coal  Co.  v.  Blair,  610. 
Monaghan  v.  Small,  502. 
Monroe  v.  Jones,  420. 
Montague  v.  Dawes,  314,  397. 
Montgomery  v.  Jolmson,  195,  512. 
Montgomery  v.  Dorion,  287. 
Montz  V.  Hoflfman,  263. 
bloody  V,  Fislar,  458. 
Moody  V.  Moody,  600. 
Mooers  v.  Wliite,  373. 
Mooney  v.  Cooledge,  198. 
Moore  v.  Jordan,  119. 
Moore  v.  Wilkinson,  139. 
Moore  v.  Robins,  154. 
Moore  v.  ^loore,  213. 
Moore  v.  Simmons,  250. 
Moore  v.  Pickett,  369. 
Moore  v.  Wade,  379.  . 
Moore  v.  Cornell.  398. 
Moore  v.  Alderman,  549. 
Moore  v.  Burrows.  343. 
Moore  v.  Cliandl<>r,  573. 
Moore  v.  Lyons,  423. 
Moore  v.  Giles,  211. 
^loore  V.  Snow,  158. 
Moorecroft  v.  Dowding.  306. 
Moran  v.  Dillehay,  411,  419. 
Moran  v.  Palmer,  157. 
Moreland  v.  Lawrence,  520. 
Morgan  v.  Curtcnius,  98. 
ilorgan  v.  Palmer,  129. 
Morgan  v.  ClayUjn.  201,  235. 
Morgan  v.  Bergen.  343. 
Morgan  v.  Pope,  123. 
Morgan  v.  Bause,  493. 
Morgan  v.  Hammett,  378. 
Molir  V.  Tulip.  512.  514. 
Morice  V.  Bisljop  of  Diuhain,  132. 
Morrill  v.  Cliapmiin.  115. 
.Morrill  v.  NoV"-**,  391. 
Mcjrrill  v.  (Jniham,  65-1. 


liv 


TAHI.E    OF    CASES. 


IMorris  v.  McMonLs,  214. 
Moiris  V.  State,  370. 
Morris  v.  Robey,  493. 
Mon'is  V.  Halbert,  595. 
Morris  v.  Tiirnpikfe  Road,  57. 
Morris  v.  HokU',  513. 
Morrison  v.  Kelly.  59. 
Morrison  v.  CaUhvcll,  156 
Morrison  v.  King,  040. 
Morrison  v.  Silvcrhurgh,  525. 
Morrow  v.  Wi'Oil,  512. 
Morrow  v.  Whitney-,  53,  141. 
Moi-ton  V.  Greene,  535. 
Moss  V.  Atkinson,  343. 
Moughon  V.  Mastei-son,  389. 
Moulton  V.  Macarty,  486. 
Mounce  v.  Beyers,  347. 
Mowny  v.  Crocker,  322. 
Mulford  V.  Beveridge,  322. 
Mulford  V.  Tunis,  461. 
Mulford  V.  Peterson,  398, 
Mullins  V.  Aiken,  502. 
MuUins  V.  Sparks,  526. 
Muniford  v.  Wliitney,  26. 
Munday  v.  VaU,  482,  484. 
Mundorf  v.  Howard,  351. 
Murdock  v.  Ward,  419. 
Murphy  v.  Mayor,  etc.,  636. 
Murphy  v.  McGrath,  370. 
Murphy  v.  Hendricks,  385. 
Murry  v.  Blackledge,  185. 
Murry  v.  Lj^burn,  464. 
Musgrove  v.  Bonser,  73. 
Mushlitt  V.  Silverman,  459. 
Musick  V.  Barney,  73. 
Musser  v.  Hershej",  163. 
Myler  v.  Hughes,  482. 
Myer  v.  McDougal,  320. 

National  Bank  v.  Jaggers,  486. 
Neal  V.  Speigle,  458. 
Negbauer  v.  Smith,  195. 
Neff  V.  Pennoyer,  510. 
Neiswanger  v.  Gwyne,  480. 
Nelson  v.  Ferris,  398. 
Nevens  v.  Goiu'ley,  303. 


Neveiis  V.  Gourley,  428. 
Newell  V.  Nichols,  588. 
Newcomer  v.  Wallace,  318, 
Newman  v.  Jenkins,  536. 
Newman  v.  Fislier,  332. 
Newman  v.  Willetts,  448, 
Newton  V.  McKay,  186. 
Ni'wsom  V.  Thompson,  208. 
Ni'ufville  V.  Stewart,  368. 
Nichols  V.  Nichols,  120. 
Nichols  V.  Postletliwaitc,  371. 
Nichols  V.  Mitchell,  512. 
Nicol  V.  R.  R.  Co.,  548. 
Nixon  V.  Downey,  528. 
Nixon's  Appeal.  214. 
North  V.  Belden,  392. 
North  V.  Knowlton,  393, 
Norton  v.  Kearney,  329. 
Norton  v.  Dow,  525. 
Norris  v.  Tliom[)son's  Heirs,    432. 
Norvell  v.  Walker,  170. 
Nowlin  V.  Reynolds,  001,  604. 
Nugent  V.  Cincinnati  R.  R.  Co.,  44. 
N.  W.  Iron  Co.  v.  Mead,  541. 

Oaksmith  v.  Jolmson,  610. 

O'Brien  v.  Perry,  593. 

O'Brien  v.  Creig,  463. 

Ochoa  V.  Miller,  446. 

Ochiltree  v.  McClurg,  186. 

Odd  Fellow's  Bank  v.  Banton,  392. 

Odiorne  v.  Wade,  47. 

Odell  V.  Montross,  375,  379,  454. 

Odle  V.  Odle,  523. 

Ogden  V.  Jennings,  25. 

Ogden  V.  Walters,  225, 

Ogden  V.  Walkei-s,  392. 

Okeson's  Appeal,  436. 

Olcott  V.  Robinson,  496. 

Olds  V.  Gumming,  399. 

Oliver  v.  Crosswell,  541. 

Oliver  v.  Robinson,  478. 

Oliver  v.  Pratt,  236. 

Olney  v.  Hall,  429. 

Olson  V.  Merrill,  48. 

Ommanny  v.  Butcher,  367. 


TABLE    OF   CASES. 


Iv 


Orendorff  v.  Stnnberry,  52-1. 

Ormsbj-  v.  TeiTv,  503. 

Orrick  v.  Boehm,  438. 

Orr  V.  O'Brien,  447. 

Osborn  v.  Adams,  29. 

Ostrom  V.  Curtis,  520. 

Osterberg  v.  Union  Trust  Co. ,  479. 

Osgootl  V.  Blackmore,  496. 

Osgood  V.  Abbott,  199. 

Oswald  V.  Gilfert,  356. 

Overseers  v.  Seai-s.  232. 

Owen  V.  Reed,  259. 

Owen  V.  Navasta,  492. 

Owens  V.  Miss.  Soc,  433. 

Oxley  V.  Lane,  413. 

Packard  v.  Ames,  199. 

Padgett  V.  Lawrence,  186. 

Page  V.  Rogers,  28. 

Page  V.  Palmer,  199. 

Page  V.  Greely,  349. 

Page  V.  Trucli,  655. 

Paige  V.  Chai)m:m,  399. 

Page  V.  Foust,  421. 

Palmer  v.  Ford,  252. 

Palmyra  v.  Morton,  361. 

Panoia  Co.  Sup.  v.  Gillen,  393. 

Pardon  v.  Dwire,   526. 

Paris  V.  Mason,  51. 

Parish  V.  Ward,  501. 

Park  r'ornm'rs  v.  Armstrong,  52. 

Parker  v.  Fay,  158. 

Parker  v.  SoxUjn,  556. 

I'arker  v.  Parker,  413. 

Parker  v.  Parmelee,  348. 

Parks  V.  Hall,  375. 

Parks  V.  Park.*?,  412. 

Parkinson  v.  Transdale,  398. 

Pariiiii'V  V.  Biifklcy,  293. 

I'.irrat  v.  N.-HkIi.  429. 

Parr.tt  v.  Sliabiiut,  73,  206. 

I'arstI  V.  Stryker,  357. 

Pars.-ll  V.  Th.iyiT.  393. 

Parwlcy  v.  Ni<lii>lrt<»ii,  48-1. 

Pan«>nH  v.  N<»kIi'.  376. 

Parw;n.s  v.  W.IIh,  543. 


Parsons  v.   Commissioner,  105. 

Passmore's  Appeal,  423. 

Patton   V.  Campbell,  458. 

Patton  V.  Hope,  325. 

Paj'son  V.  Hadduck,  583. 

Peabodyv.  Hewitt,  217. 

Peabody  v.  Brown,  186. 

Peak  V.  Wendel,  114. 

Peak  V.  Ligon.  482. 

Peai"sons  v.  Tucker,  463. 

Peay  v.  Little  Rock,  477. 

Peck  V.  Arehart,  231. 

Peckham  v.   Haddock,    230,    232, 

418. 
Pegues  V.  Warlej-,  605. 
Peine  v.  Weber,  273. 
Pendleton  v.  Button,  209. 
Pennock's  Estate,  434. 
Pensonneau  v.  Bleakley,  287. 
People  V.  ^larshall,    551. 
People  V,  Bradley,  552. 
People  V.  Biggins,  558. 
People  V.  Snyder,  210,  313. 
People  V.  Gates,  214. 
People  V.  Herbel,  242. 
People  V.  Livingstone,  15. 
People  V.  Conklin,  53. 
Peoi)le  V.  Ferry  Co.,  164. 
People  V.  Morrill,  163. 
People  V.  Gilbert.  609. 
Peoi)le  V.  Peat,  557. 
Peojile  V.  Bernal,  526. 
People  V.  Richards,  6:5,  66,  67. 
Peoi)le  V.  Circuit  Judge,  323. 
Peoria  v.  Dai-st,  231. 
Peoria  v.  Kiddi-r,  517. 
Perkins  v.  Swank,  606,  639. 
Perkins  v.  Sinim<»ndH,  503. 
Petei-s  V.  Spiliiiiaii.  4<)9. 
Petei-s  V.  l'liilli|H.  311. 
Petition  of  Bati-inan,  267. 
Pettrsine  v.  Thouuix,  4H1, 
I'ctci-son  V.  Clark,  3M1. 
PettilM)n('  V.  Ilainiit')!!,  533. 
Pfttit  V.  ('oojK-r,  4H2. 
Peugh  V.  DaviH,  5570. 


Ivi 


TAIJI-E    OF    CASES. 


Pt»)-ton  V.  JolTrios,  21. 
Phelps  V.  Smith,  98. 
Pholps  V.  Curtis,  328. 
Phillii)s  V.  Stevens,  354,  355. 
Piiillipshurgh  v.  Biiich,  410. 
I'iel  V.  Breyer,  422. 
Pierce  v.  Milwaukee,  333. 
Pierre  Mutelle  ca.se,  156. 
Pike  V.  Galvin,  376. 
Pikev.  Brown,  255,  352. 
Pike  V.  Wiissell,  60. 
Pickett  V.  Dowling,  49. 
Pile  V.  McBratney,  891. 
Pillow  V.  Helm,  391. 
Pillsubury  v.  Mitchell,  202. 
Piilslmry  v.  Kingon,  327. 
Pingree  v.  McDuffe,  25,  640. 
Pingree  v.  Watkins,  201,  235. 
Pinney  v.  Fellows,  606.  639. 
Pitts  V.  Singleton,  316. 
Plumb  V.  Tubbs,  252. 
Poe  V.  Hartlie,  17. 
Pollock  V.  Buie,  489. 
Pollock  V.  IMaison,  401. 
Pollard  V.  Hogan,  134. 
Pomeroy  v.  Stt'vens,  70. 
Pool  V.  Potter,  289. 
Pope  V.  Cutler,  447. 
Poplin  V.  Mundell,  83. 
Porter  v.  Sullivan,  239. 
Porterfield  v.  Taliaferro,  582. 
Post  V.  Kearney,  356. 
Potter  V.  Stevens,  398. 
Potts  V.  Davenport,  21,  508. 
Powder  Co.  v.  Loomis,  459, 
Powell  V.  Smith,  378. 
Powell  V.  Knox,  473. 
Powell  V.  Rogers,  482, 494. 
Power  V.  Cassidy,  431. 
Powers  V.  Jackson,  145, 
Powder  Co.  v.  Loomis,  392. 
Pratt  v.  Pratt,  376. 
Prescott  V.  Moree,  321. 
Preston  v.  MorrLs  Case  Co.,  398. 
Prest  in  v.  Van  Gorder,  555. 
Pretty  man  v.  Barnard,  484. 


Prettymau  v.  Wilkey,  233. 
Pribble  V.  Hall,  267. 
Price  V.  Osborn,  206. 
Prim  V.  Rabateau,  519. 
Pringle  v.  Dunn,  73,  197,  209,  299. 
Pritcliard  v.  Brown,  70,  639. 
Probasco  v.  Johnson,  624. 
Proctor  v.  Bigelow,  590. 
Prouty  v.  Mather,  299. 
Providence  v.  Adams,  38. 
Propst  v.  Meadows,  520. 
Pugh  V.  Holt,  375,  382. 
Pullan  V.  R.  R.  Co.,  274. 
Putnam  v.  Bicknell,  185,  200. 
Pry  or  v.  Downey,  513. 

Quimby  v.  Conlan,  456. 
Quinu  V.  Kenyon,  98. 
Quirm  v.  Rawson,  369. 

Raines  v.  Walker,  211. 
Rally  v.  Guinn,  565. 
Ramsdell  v.  Ramsdell,  424. 
Rand  v.  Sanger,  422. 
Rand  v.  Meir,  424. 
Randall  v .  Sanger,  528. 
Randolph  v.  Cai'lton,  467. 
Randolph  v.  Metcalf ,  476. 
Randolph  v.  State,  65. 
Rankin  v.  Dulaney,  452. 
Rankin  v.  Miller,  322. 
Rathgerber  v.  Dupy,  392. 
Rawson  v.  Fox,  G02. 
Ray  burn  v.  Kuhl,  506. 
Raymond  v.  Haider,  608. 
Read  v.  Gather,  434. 
Read  v.  Whittemore,  43. 
Reasoner  v.  Markley,  120-391. 
Redden  v.  Miller,  638. 
Reddick  v.  Bank,  528. 
Redfield  Mfg.  Co.  v.  Dysart,  191. 
Reed  v.  Jones,  345. 
Reed  v,  Bradley,  280. 
Reed  v.  Pelletier,  328. 
Reed  v.  Shergold.  533. 
Reed  v,  Lukens,  342. 


TAULE    OF   CASES. 


Ivii 


Reed  v.  Roea.  423. 
Reed's  Appeal,  472. 
Rees  V.  Chicago,  180. 
Reeves  v.  Kimball.  346. 
Reindere  v.  Kapix'luiann.  36. 
Reiiihart  v.  Schuyler.  538. 
Rhienstroni  v.  Cone,  214, 
Remington  Paper  Co.  v.  O'Dough- 

erty,  175. 
Rex  V.  Mathci-seal,  379. 
Reynolds  v.  Schmidt,  512. 
Reynolds  v.  Scott,  375. 
Rice  V.  R,  R,  Co.,  149. 
Rice  V.  Kelso,  391. 
Rice  V.  Bunce,  44. 
Rich  V.  Doane,  375. 
Richarfls  v.  Green,  22. 
Richards  v.  :\Iiller,  415,  419. 
Richartls  v.  Bent,  202. 
Richards  v.  Crawford,  380. 
Richardson  v.  Thompson,  525. 
Richardson  v.  Clow,  190. 
Ricliardson  v.  Wicker,  422. 
Richmond  v.  Gray,  13. 
Riddick  v.  State  Bk.,  454, 
Riddle  V,  Bush,  300. 
Ridgeway  v.  HolHday,  GOG. 
Riggs  V.  Boy  lean,  63. 
Rigg  V.  Fuller,  608. 
Riggin  V.  Love,  197. 
Riggs  V.  Buyhin,  73. 
Ri;;ney  y.  Chicago,  56. 
Rigor  V.  Frye,  27. 
Rindge  v.  Baker,  367. 
Ringlioiwe  v.  Keever,  580, 
Ripley  v.  Harris,  392, 
Ripl<-y  v.  Gage  C(^.,  461. 
Rivers  V.  Thom|»H<jn,  553,  556. 
Rix  V.  Smith,  4>i8. 
Rohitis  v.  Bunn.  120. 
Rohertii  v.  (Jiellaiid,  508. 
liolwrtfl  V.  RoImtIh,  324, 
l£«ilMrts  V.  H.isHftt.  348.  633. 
Rolxrtw  V.  Stowers,  527, 
U>,\H-rb>.,r.  V.  Willsvill.-.  52. 
lUAH-rlnun  v.  Guerin,  299. 


Robinson  v.  Le  Grand,  415. 
Robinson  v.  Bates,  23. 
Robinson  v.  Payne,  197. 
Robinson  v.  Eagle,  262,  263. 
Rockwell  V,  Brown.  158. 
Roche  V,  Ullmann,  367. 
Rodgei-s  V,  Bell,  535, 
Rodgei-s  V.  Bonner,  473. 
Rogan  V.  Walker,  199. 
Rogei-s  V.  Green,  525. 
Rogei-s  V.  Sinsheimer,  367. 
Rogei-s  V.  Renshaw,  22. 
Rollin  V.  Cross,  462. 
Rollin  V.  Pickett,  221,  231. 
Rose  V.  Taunton,  191. 
Rosenthal  v.  Renick,  455, 
Rosenthal  v.  Mayhugh,  283. 
Ross  V.  Ross,  32. 
Ross  V.  Sadgbeer,  190. 
Ross  V.  Faust,  48. 
Ross  V.  Barhiiid,  555. 
Rothgerber  v.  Dupy,  459,  461. 
Rourke  v.  O'Conner,  552. 
Rowe  V.  Becker,  201. 
Rowley  v.  James,  402. 
R.  R.  Co.  V.  Rag^dale,  45. 
R.  R.  Co.  V.  Schurmeir,  51,  173. 
R.  R.  Co.  V.  Burkett,  51,  473. 
R.  R.  Co.  V.  Tevis,  97. 
R.  R.  Co.  V.  United  States,  107. 
R.  R.  Co.  V.  R.  R.  Co.,  132,  150. 
R.  R.  Co.  V.  Brown,  122. 
R.  R.  Co.  V.  Litclili.-ld,  150. 
R,  R,  Co,  V,  Morris.  556. 
R.  R.  (.'o.  V.  Jolict,  isi. 
R.  R,  Co.  V.  Schuyler,  630. 
R,  R,  Co.  V.  MaKuire,  553. 
R.  R.  Co.  V,  Kcmicdy,  1U7. 
R.  R.  iU>.  V.  Chicago.  470. 
Huckcr  V.  Doolcy,  537. 
Ruckl''  V.  Barlxiiu',  433. 
Kufni-r  V.  Mc( 'onn.-ll,  223. 
liiigg  V.  n(M)v«-r,  461. 
Riisling  V.  Riisliiig,  530. 
Rnsliu  V.  Shi. -Id.  211. 
UiUiscU  V.  Kanbom,639. 


Iviii 


TABLE    OF    CxVSES. 


Kiisst'll  V.  ITart,  44S. 
Russell  V.  Jackson,  594. 
RussoU  V.  Sweozy,  639. 
Russell  V.  Place,  471. 
Russell  V.  Brown,  221. 
Russell  V.  Wliitehead,  134. 
Russell  V.  Mimdell,  74. 
Ruston  V.  Ruston,  414. 
Rutgers  v.  Hunter,  356. 
Ruth  V.  King,  158. 
Rutherford  v.  Tracy,  175. 
Ruttenberg  v.  Main,  343,  344. 
Runyan  v.  ^lessercan,  400. 
Rj-an  V.  Andrews,  33. 
Ryan  v.  Carter,  140. 
Ryan  V.  Carr,  301. 
Ryan  V.  Doyle,  306.- 
Ryan  v.  Duncan,  318. 
Rj'au  V.  Killpatrick,  610. 
Ryder  v.  Rush,  337. 
Ry.  Co.  V.  Burket,  473. 

Salmon  v.  Vallejo,  202. 
Sammons  v.  Halloway,  214. 
Samuels  v.  Shelton,  301. 
Sanborn  v.  Robinson,  388. 
Sanders  v.  Eldridge,  195. 
Sands  v.  Davis,  157. 
Sands  v.  Lynhani,  59. 
Sands  v,  Hughes,  602. 
Sanfair  v.  Sanfair,  381. 
Sanger  v.  Craigul,  69. 
S  msberiy  v.  MoElroy,  573, 
Sanxay  v.  Hunger,  636. 
Sapp  V.  Wightman,  548. 
Sargent  v.  Howe,  296. 
Sash  V.  Hai-dick,  407. 
Saunders  v.  Hart,  45,  46. 
Saimdd    V.  Hanes,  192,  231,  249. 
Saunders  v.  Schmaelzle,  195. 
Sawyer  v.  Cox,  81,  168. 
Sayler  v.  Plame,  19. 
Scamraon  v.  Chicago,  497. 
Scammon  v.  Swartwout,  499. 
Scanlan  v.  Wright,  186. 
Scarborough  v.  Smith, 


Scarlett  v.  Gorham,  4G4. 
Schafer  v.  Reilly,  340. 
SchaeiTer  v.  People,  555. 
Scharfenburg  v.  Bishop,   224,    225. 
Schettler  v.  Smith,  434,  435. 
Schmeling  v.  Kriesel,  541. 
Schmucker  v.  Sibert,  255. 
Schnee  v.  Schnee,  160. 
Schofer  v.  Reilly,  400. 
School  District  v.  Taylor,  393. 
School  District  v.  Werner,  472. 
Schott  Estate,  .412,  413. 
Schroeder  v,  Gurney,  537. 
Schulenberg  v.  Harriman,  133. 
Schumpert  v.  Dillard,  249. 
Schurmier  v.  R.  R.  Co.,  48. 
Scofield  V.  Jennings,  216. 
Scoffin  V.  Grandstaff,  43. 
Scott  V.  Rand,  290. 
Scott  V.  Mann,  324. 
Scott  V.  Simpson,  348. 
Scott  V.  Moore,  519. 
Scott  V.  Elkins,  602. 
Scovill  V.    Grillith,  518. 
Seckler  v.  Delfs,  400. 
Seigneuret  v.  Fahey,  27. 
Seig\vald  v.  Seigwald,  424. 
Sellers  v.  Corwin,  473,  474. 
Semple  v.  Bank,  27. 
Sewal  V.  Roberts,  579. 
Seyler  v.  Cai^son,  202. 
Seymour  V.  Sanders.  10. 
Sevier  v.  Gordon,  5^3. 
Shackelford  v.  Todliunter,  23. 
Shackleton  v.  Siel>ree,  245. 
Shanks  v.  Klein,  272. 
Shannon  v.  Hall,  391,  393. 
Shattuck  V.  Hastings,  199. 
Sharp  V.  Spear,  57. 
Shaw  V.  Chambers,  518. 
Shays  v.  Norton,  379. 
Sheaf  V.  W^ait,  555. 
Shear  v.  Stothart,  52. 
Shearer  v.  Shearer,  272. 
Shearer  v.  Weaver,  586. 
Sheldon  v.  Rice,  324. 


TABLE    OF   CASES. 


Ux 


Shepard  v.  Howard,  2G8. 
Shepard  v.  Shepard.  393. 
Shepardson  v.  Rowland,  225. 
Sheppard  v.  Thomas,  199, 
Sheridan  v.  Andrews,  536. 
Slierlock  v.  "Winnetka,  552. 
Sherman  v.  Abbott,  543. 
Sherman  v.  Hoghind,  185,  263. 
Sherman  v.  Kane,  607,  610,  634. 
Sherrid  v.  Southwick,  389. 
Sherwood  v.  Wilson,  405. 
Slierwood  v.  Slierwood,  412. 
Shields  V.  Miller,  301. 
Shields  V.  Roberts,  599. 
Shivley  v.  Parker,  163. 
f^hivers  v.  Simmons,  266. 
Short  V.  Conlee,  209,  227. 
Shortall  v.  Hinkley,  253. 
S'.iriver  v.  Shriver,  218,  633. 
Siiriver's  Lessee  v.  Lynn,  432. 
Shuffleton  v.  Nelson,  605. 
Shumaker  v.  Johnson,  <.Z. 
Slmmway  v.  Holbrook,  446. 
Skinner  v.  Fulton,  511. 
Siblpy  V.  Waffle,  514. 
Sibley  v.  Smith,  566. 
Si^oumey  v.  Larned,  73. 
Sillers  V.  Lester,  391. 
Silliman  v.  Cummins,  267. 
Sillyman  v.  King,  115. 
Simmons  v.  Fuller,  385,  393. 
Simmons  V.  Wagner,  115. 
Simmons  v.  Thomas,  263. 
Sinnett  v.  Cralle,  491. 
Simi»sfjn  v.  Pears<jn,  42,  45. 
Simjison  v.  Neil,  163. 
Sims  V.  Rickets,  260,  264. 
Sims  V.  Hammond,  399. 
Skinner  v.  W<Kjd,  317. 
Skinner  v.  Fulton,  591. 
Slater  v.  IJreese,  222,  :i85. 
Sloan  V. Lawrence  Furnace  Co., 108. 
Sirx'um  V.  Slocum,  522. 
"->l(»Hs«jn  V.  Lynch,  580. 
-mull  V.  MtaKK.  45H. 
Muiku  V,  lIa«lingH,  300. 


Smiley  v.  Bailey,  423. 

Smith  V.  Chenault.  21. 

Smith  V.  Colvm,  28,  494. 

Smith  V.  Frankfield,  43. 

Smith  V.  Block,  193. 

Smith  V.  Crawford,  195,  231,  538. 

Smith  V.  Garden,  209,  227. 

Smith  V.  McCoTuiell,   206. 

Smith  V.  Van  Gilder,  228. 

Smith  V.  Ball,  208. 

Smith  V.  Sheely,  276,  278. 

Smith  V.  Keoharne,  340. 

Smith  V.  Bell,  424. 

Smith  V.  Rowland,  458. 

Smith  V.  Bradstreet,  467. 

Smith  V.  Richardson,  531. 

Smith  V.  Bangs,  533. 

Smith  V.  Sherwood,  535. 

Smith  V.  Wood,  407. 

Smith  V.  Messer,  553. 

Smith  V.  Lewis,  562. 

Smith  V.  McConneU,  318,  573. 

Smith  V.  Smith.  583,  586. 

Smith  V.  Robertson,  633. 

Smith  V.  Walser,  306. 

Smith  V.  Cranberry,  324. 

Smith  V.  Wilcox,  497. 

Smithdeal  v.  Smith,   408. 

Smyth  V.  Taylor,  418. 

Snapp  V.  Pierce,  46. 

Snydacker  v.  Brown,  527. 

Snyder  v.  Palmer,  43. 

Soens  V.  Racine,  553. 

Sohier  v.  Coffin,  253. 

Solomon's  Lodge   v.    Montmallin, 

236. 
Soufifid  V.  Thompson,  226. 
Soule  V.  Harlow,  001,  Oil. 
Soutiiern  Cal.  Coll.  Assc,   v.  lUista- 

mete,  235. 
Southern  Hank  v.  Iluinplircys,  4n3, 

529. 
Southern    Pac.    H.  U.  v.  Dull,   133. 
Sower  V.  Phila<lflphia,  302. 
Sp.-kckman  v.  ( )(t.  374. 
Sparhawk  v.  Hu<ll,  4WU. 


Ix 


TADLE   OF   CASES. 


Sparrow  v.  llovt-y,  600. 

S|KUihling  V.  GrcK>?,  2-1."). 

SiH'aktnnn  v.  Forcpauj;!!,  033. 

Sjwnce  V.  Armour,  431. 

SiMmcor  V.  Di-arth,  471. 

Sperry  v.  Pound,  210. 

Spi;;ht  v.  Wiildron,  533. 

Sphihn  V.  GilU'spie,  300,  510. 

Sprig  V.  Moalf.  ^>^G. 

Springer  v.  Hwittlo,  230. 

Spurlock  V.  Alien,  490. 

Staali  V.  Sigelow,  186 

Stadlor  V.  Allen,  473. 

Stanelifts  v.  Norton,  387. 

Standish  v.  Litwi-ence,  367. 

Stanley  v.  Risse,  530. 

Stark  V.  Mather,  115 

Stark  V.  Brown,  610. 

Stark  V.  Stan-s,  111,    115,    143,  601. 

St;irkweather  v.  Martin,  205. 

Stiirry  v.  J<.)hnson,  473. 

State  V.  Meagher,  317. 

State  V.  McGlynn,  447. 

State  V.  Ramshurg,  481. 

State  V.  Pej^per,  42. 

State  V.  Bradish,  44,  93. 

St.ite  V.  Laverack,  57, 

Stats  V.  Jennings,  288. 

State  V.  Jersey  City.  303. 

State  V.  Fasdick,  274. 

State  V.  Lemngweil,  275, 

State  V.  Raeliac,  66. 

suite  V.  Wallace,  589. 

Suite  V.  Potter,  589,  591. 

State  V.  Williams,  590. 

State  V.  Or  wig,  535. 

State  V.  Ames,  595. 

St.  Clair  Co.  v.  Livingstone,  48,  50. 

Steel  V.  Kurtz,  35. 

Steele  v.  Boone,  73. 

Steeple  v.  Downing,  556,  505. 

Steere  v.  Steere,  294. 

Stein  V.  Sullivan,  399. 

Stephens  v.  Reynolds,  351,  357. 

St'-'phons  V.  Williams.  203. 

Stephens  v.  Evans,  363. 


Strplicnsv.  Ilolmos,  504. 
Stephenson  v.  Wilson,  IL'O. 
Sterns  v.  Swift,  208. 
Stevens  v.  West,  186. 
Stevens  v.  Bond,  496. 
Stevens  v.  Brooks,  601,  603. 
Stevens  v.  Rainwater,  458. 
Stevens  V.  R.  R.  Co.,  134. 
Stevt-ns  v.  Harrow,  254. 
Stevens  v.  IlampUm,  208. 
Stewart  V.  Pettigrew,  493. 
Stewart  v.  CJarvin,  505. 
Stewart  v.  Barrow,  373,  400. 
Stewart  v.  MeSweeny,  253. 
Stewartson  v.  Stewartson,  546. 
Stiles  v.  Brown,  210. 
Stillwell  V.  Swarthaut,  491. 
Stinchfield  v.  Little,  288. 
Stoddard  v.  Burton,  42. 
Stotldard  v.  Cliambers,  154. 
Stoifel  V.  Selu-oeder,  230. 
Stow  V.  Yarwood,  338. 
Stow  V.  Steele,  298. 
Streeter  v.  Streeter,  857. 
Strickland  v.  Draughan,  195. 
Strickland  v.  Kirk,  342. 
Stringer  v.  Young,  154,  158,  100. 
Strong  V.  Lchmer,  154. 
Strong  V.  Converse,  255. 
Strother  v.  Lucas,  41,  147,  148. 
Strotlier  v.  Law,  398. 
Stuart  V.  Harrison,  458. 
Stuart  V.  Walker,  424. 
Stuart  V.  Allen,  318. 
Stubbs  V.  Sargon,  433. 
Stuller  V.  Link,  209. 
Stui)hen  v.  Ellis,  380. 
Sturdevant  v.  :\Iather,  561. 
Styles  V.  R-obst,  266. 
Succession  of  Bogere,  583. 
Sullivan  v.  Sullivan,  538. 
Sumner  v.  Williams,  201,  299. 
Surgi  V.  Colnier,  491. 
Sutherland  v.  Goodnow,  356. 
Sutton  V.  Schonwald,  50'l. 
Swan  v.  Benson,  458. 


TABLE    OF    CASES. 


Ixi 


Swan  V.  Yaple,  400. 
Swann  v.  Limlsey,  131,  U7,  148. 
Swann  v.  Fabyan,  544. 
Swartz  V.  Leist,  399. 
Sweat  V.  Corcoran,  127. 
Sweet  V.  MiUhell,  374. 
Swegle  V.  Wells.  457. 
Swink  V.  Thompson,  593. 
Sykes  v.  Sykes,  268. 

Taft  V.  KesseU,  348,  633. 
Taggart  v.  Risley,  43. 
Taggart  v.  Murry,  413. 
Talbott  V.  R.  R.  Co. ,  256. 
Talbot  V.  Hudson,  51. 
Talbot  V.  Todd,  4S1. 
Tankard  v.  Tankard.  70. 
Tatum  V.  McClellan,  416. 
Taylor  v.  Prt-ston,  201. 
Taylor  v.  Boyd,  414. 
Taylor  v.  Reed,  412. 
Taylor  v.  Dodd,  4-34,  436. 
Taylor  v.  Kin^^  403. 
Taylor  v.  Sutton,  252. 
Taylor  V.  Brown.  115. 
Taylor  v.  Gilpin.  304. 
Taylor  v.  Phillips,  505. 
Teabout  v.  Dani.  Is,  602,  605. 
Teft  V.  !Munson,  376,  377. 
Terrell  v.  An.lrew  Co.,  72,  73. 
Terrett  v.  Taylor.  147. 
T»'rry  v.  Wiggins.  422. 
Terwiliiger  v.  Brown,  307. 
TfStheinaoher  v.  Thomson,  1.59. 
Ti'xa.i  Land  Co.  v.  Williams,  208. 
That'herv.  St.  Andrews  Ch.,  187, 

210. 
Thatcher  v.  Can'h-n.  206. 
Thatcher  v.  Ilowland,  268. 
Thayer  V.  Torry,  221,  :i47. 
Tliayer  v.  Wiliington,  438. 
T»iaxt«T  V.  Williams,  460. 
Thi<  iman  v.  Cirr,  302.  553. 
Tlu.maa  v.  riark,  3iH. 
Thoma-s  v.  Wy.itt.  ](V). 
Thuniait  v.  Bartow,  3-10. 


Thomas  v.  Babb.  005. 

Thomas  v.  Industrial  University, 

461. 
Thomas  v.  Desney,  486. 
Thomas  v.  Stickle,  556, 
Thomas  v.  People,  512. 
Thomas  v.  Chicago,  231. 
Thompson  v.  Gregory,  26. 
Thompson  v.  Pi-ince,  148. 
Thompson  v.  Thompson,  187. 
Thompson  v.  Lovi-ein,  217. 
Thompson  v.  Ludington,  365. 
Thompson  v.  Lee,  487. 
Thompson  v.  Craighead,  429. 
Thompson  v.  Ware,  5G6. 
Thompson  v.  Pioche,  601,  601. 
Thompson  v.  Dearborn.  211,  255. 
Thompson  v.  Lyman,  388,  300. 
Thompson  v.  Schuyler,  535. 
Thompson  v.  Felton,  600. 
Thompson  V.  Burhans,  639. 
Thompson  v.  Curtis,  367. 
Tlio:np3on  v.  Higgiubotham,  370. 
Thorn  v.  Ingi-am,  320. 
Thornton  v.  Grant,  49. 
Thornton  v.  Irwin,  402. 
Tliorp  V.   Keokuk  Coal   Co.,  203, 

236. 
Thrasher  v.  Ingram,  413. 
Thrasher  v.  B.-ntley,  331. 
Throckmorton  v.  Price,  73. 
Thuleman  v.  Jones,  476. 
Thurmanv.  Cameron,  283. 
Tibbs  V.  Allen,  526. 
Til)bitts  V.  Tiiton,  511. 
Tidd  V.  Rines,  114. 
Tilley  V.  Bridges,  501. 
Tillman  v.  Davis,  419,  580. 
Tiiton  V.  Ilnnter,  68. 
Tiiton  V.  U.  11.  Co.,  637. 
Timaniis  v.  Dugan,  416. 
Ti.sdale  v.  las.  Co.,  588. 
Tobey  v.  Taunton,  43. 
To<ld  v.  R.  R.  (^•.,  51. 
Todd  v.  I'liiihour,  3(M). 
TolleiLson  V.  Uui.deraon,  222. 


Ixii 


TA15LK    OF    CASES. 


Tolman  v.  Einniorson,  567. 
Tumliii  V.  MiChonl.  'MS. 
Tlioiiipkiiis  V.  l\)ii(la,  20. 
Tlumipkiiis  v.  JSivly,  34ft. 
Thomkins  v.  Wiltlu'igor,  526. 
Tone  V.  AVilson,  167. 
Torroy  v,  Deavitt,  399,  40-1. 
Torroy  v.  Cook,  315. 
To\v«"r  V.  Divine,  322. 
Townsi-ml  v.  Corning,  288. 
Townsi-nil  v.  IluMianl,  288. 
Townsend  v.  Tallant,  433. 
Townscnd  v.  Ka.lclilT,  419.  580. 
Townahenil  v.  Reg.  of  N.  Y.,  07. 
Tracy  v.  Kilborn,  427. 
Tracey  v.  Rogers,  460. 
Traynor  v.  Palmer,  223. 
Treadwell  v.  Reynolds,  211. 
Trim  v.  ]\Iarsh,  400. 
Tritt  V.  Roberts,  521. 
Troost  V.  Davis,  518, 
Troy  V.  R.  R,  Co.,  58. 
Trueliart  v.  Price,  534. 
Trust  Co.  V.  People,  59. 
Trustees  v.  Beale,  389. 
Tubbs  V.  Gatewood,  207. 
Tucker  v.  Field,  221. 
Tucker  v.  Wliitehead,  447. 
Tufts  V.  King,  70. 
Turner  v.  Smith,  479. 
Turner  v.  Yw)man,  566. 
Turner  v.  Kerr,  376. 
Turner  v.  Ivie,  246. 
Turner  v.  Jenkins,  484, 
Turner  v.  Watkins,  331,  374. 
Tumey  v.  Cliamberlain,  600. 
Turpin  v.  Road  Co.,  367. 
Tustin  V.  Faught,  204. 
Tuttle  V.  Churchman,  69,  70. 
Twicliell  V.  Mears,  256. 
Tyler  v.  Reynolds,  30,  35,  576,  585. 

UfFord  V.  Wilkins,  184. 
Union  Mill  Co.  v.  Ferriss,  160. 
Union  Trust  Co.  v.  Weber,  553. 
United  States  v.  Jones,  56,  57. 


United 
United 

160. 
United 
United 

552. 
United 
United 

116. 
United 
United 
United 
United 
United 
Updike 


States  V.  Brooks,  131. 
States  V.  Land    Grant  Co., 

States  V.  Fox,  410. 
States    V.  New    Orleans, 

States  V.  Brooks,  107. 
States  V.    Fitzgerald,    114, 

States  V.  Hoar,  006. 
States  V.  King,  110. 
States  V.  Perchman,  131. 
States  V.  Stone,  154. 
States  V.  Scliurz,  28,  156. 
V.  Tompkins,  410. 


Van  Aken  v.  Gleason,  391,  392. 
Van  Antv^erp,   In  re,  552. 
Van  Courtlandt  v.  Kip,  439. 
Van  Hanswyck  v.  Wiese,  441. 
Van  Keuren  v.  R.  R.  Co.,  70,  606. 
VanKeuren  v.  McLaughlin,  331. 
Van  Meter  v.  McFaddan,  347. 
Van  Nostrand  v.  Moore,  413. 
Van  Ransellaer  v.  Smith,  15. 
Van  Ransslaer  v.  R.  R.  Co.,  24. 
Van  Rensselaer  v.  Hays,  353. 
Van  Ransselaer  v.  Gullup,  357. 
Van  Ransseloar  v.  Pennimar,  356. 
Van  Riswick  v.  Goodhue,  388. 
Van  Scliaac  v.  Robbins,  192. 
Van  Wickle  v.  Calvin,  264. 
Van  Wickle  v.  Landry,  389. 
Vail  V.  Vail,  431. 
Vail  V.  Inglehart,  509. 
Valentine  v.  Rawson,  394. 
Valle  V.  Fleming,  503. 
Vallette  v,  Tedens,  9. 
Vallejo  Land  Ass'n  v.  Viera,  384. 

386. 
Vandall  V.  Dock  Co.,  274. 
Vandever  v.  Fi'ieman,  537. 
Vandever  v.  Roberts,  526. 
Vannatta  v.  Brewer,  354. 
Vancycle  v.  Richardson,  31,   408, 

455. 


TABLE    OF   CASES. 


Ixiii 


Vanzant  v.  Yanzant.  465,  54G. 
Vason  V.   Ball,  373,  374,  454. 
Vass  V.  Jolmson,  492. 
Vajisault  V.  Edwards,  345,  351. 
Vaughan  v.  Ely,  455,  494,  506. 
Vaughaii  v.  Greer,  555. 
Venti-ess  v.  Cobb,  314.  397. 
Verdin  v.  Slocuni,  18. 
Verges  v.  Giboney,  405. 
Vernon  V.  Morton,   328. 
Vernon  v.  Police  Board,  310. 
Vernon  v.  Vernon,  413,  421. 
Videau  v.    Griffin,  289. 
Viel  V.  Judson.  399. 
Vipond  V.  Hm-lbut,  202,  237. 
Voorhees  v.  Frisbie,  332. 
Voris  V.  Renshaw,  199. 

Wade  V.  Lindsey,  254. 
Wade  V.  Deray,  196,  228,  539. 
Waggoner  v.  McLoughlin,  560. 
Wainwright  v.  Tuckerman,  440. 
Wait  V.  Belding,  427. 
Wait  V.  Smith,  72. 
Wakefield  v.  Brown,  217. 
Wakefield  v.  Bonton,  531. 
Wakefield  v.  Chowen,  9,  93. 
Walbridge  v.  Day,  30. 
Waldron  v.  Tuttle,  590. 
Wales  V.  Bogue,  476. 
Walke  V.  Moody,  492. 
Walker  v.  Matthews,  453. 
Walk.T  V.  Smallwood,  309. 
Walker  v.  Gary,  4*:^. 
Walker  v.  Goo<lnian,  654. 
Walker  v.  Dement,  399. 
Walker  v.  Craig,  316,  318. 
Walk.r  V.  Miller,  338. 
Walker  V.  Summers,  376. 
Walk.r  V.  Cockey,  387. 
Walker  V.  Denniwjn,  289,  291. 
Wall  V.  Wall,  4J0. 
Wallace  v.  H.-rd.-ll,  210. 
Wallace  v.  HaruiHtad,   15,    16,    50, 

574. 
Wallace  v.  Wilwin,  115,  301. 


Wallace  v.  Han-is.  190. 
Walhu'h  V.  Van  Riswick,  60. 
Wallhridge  v.  Day.  575. 
Wall.T  V.  Arnold,  312,  396. 
Wallington  v.  Taylor,  436. 
Wallingford  v.  Allen,  261. 
Walsh  V.  Hill,  604. 
Walters  Appeal,  434,  436. 
Walthall  V.  Goree,  263. 
Walton  V.  Hargroves,  458. 
Walton  V.  Cody,  373,  379. 
Wambough  v.  Schenk,  586. 
Wangelin  v.  Goe,  533. 
Ward  V.  Mulford,  163. 
Ward  V.  Amory,  3G0. 
Ward  V.  Gates,  447. 
Warder  v.  Cornell,  350. 
Ware  v,  Johnson,  302. 
Ware  v.  Wisner,  447. 
Warehouse  Co.  v.  TpitIII,  505. 
Warfield  v.  Brand,  317. 
Wameke  v.  Lembea,  316. 
Warner  v.  Everett,  400. 
Warner  v.  Bull,  253. 
Warner  v.  Bennett,  253. 
Warner  v.  Sharp,  298. 
Warner  v.  Bates,  424. 
Warner  v.  Everett,  467. 
Warren  v.  Richmond,  350,  638. 
Warren  v.  Linch,  170. 
Warren  v.  Blake,  25. 
Warren  v.  Levitt,  155. 
Warn  11  v.  Chambers,  50. 
Wiishbuin  V.  Cutler,  571,  603. 
WjL'^hburn  v.  Bunihain,  73. 
Wasliburn  v.  Burns,  2(\\. 
Washliurn  v.  Fletcher,  344. 
Waterman  v.  Smith,  158. 
Wat^^rs  v.  Bush,  114,  120,  143. 
Waters  v.  Jones,  401. 
Watkins  v.  Specht,  300. 
Watkinsv.  Itogei-s,  347. 
Watrton  v.  Water  Co..  274. 
Watson  V.  Uiskmire,  264. 
W;i(s<)n  V.  y\t\v<M.d.  r)ri(i. 
Wat-sou  V.  Tiiiil.ii,  .is.-),  TiSO. 


Ixiv 


TABLE   OF   CASES. 


Wat'ion  V.  ^Inirhoad,  653. 

Watson  V.  R.  R.  Co.,  549. 

Watson  V.  Iloy,  503. 

Watson  V.  Blackwood,  412,  413. 

Watson  V.  Slioruian,  289. 

Watrous  v.  Allen,  200. 

Watt  V.  McGalliard,  49G. 

Weaver  v.  Poyer,  458. 

Webb  V.  ]Matt,  453. 

Webb  V.  Peale,  190. 

Webl)er  v.  Townley,  65,  66. 

Weber  v.  Anderson,  605. 

Webster  v.  Conley,  299. 

Weckler  V.  Bank,  274, 

Wedge  V.  !Moore.  256. 

Weeks  v.  Milwaukee,  553. 

Weeks  v.  Dowing,  74.  105. 

Weidei-sum  v.  Naumann,  521. 

Welborn  v.  Anderson,  603. 

Welch  V.  R.  R.  Co.,  37. 

Welcli  V.  Button,  46.  349. 

V/elch  V.  Priest,  400. 

Welch  V.  Phillips,  375,  400. 

Welch  V.  Sacket,  210. 

Wells  V.  Ilannavan,  522. 

Wells  V.  Atkinson,  207,  227. 

Wells  V.  Jackson  Mfg.  Co.,  603. 

Wells  V.  Wells,  264. 

Wells  V.  Stumph,  526. 

Welsh  V.  Huse,  411. 

Welsh  V.  PhiUips,  319. 

Welsch  V.  Savings  Bk.,  414,424, 

426. 
Wentworth  v.  Wentworth,  586. 
Westlake  v.  Westlake,  266. 
West  Point  Iron  Co.  v.  Reymert, 

198. 
Wetniore  v.  Parker,  432. 
Wetrnore  v.  Laird,  207. 
Wicklev.  Calvin,  316. 
Wider  V.  East  St.  Louis,  551. 
Wier  V.  Simmons.  199. 
Weisnerv.  Zaun,  43. 
Wiggins  Ferry  Co.    v.  R.  R.  Co., 

24S,  253. 
Wilder  v.  Brooks,  264. 


Wilcox  V.   Jackson,  28,    111,   127 

160. 
Wilcox  V.  Bates.  379. 
Wilcoxon  V.  0:^born,  225. 
Wiley  V.  Sinhu-us,  198. 
Wiley  V.  Williamson,  399. 
Wilkes  V.  Back,  287. 
Wilkins  V.  Tourtellott.  339. 
Wilkinson  v.  Elliott,  5-18. 
AVillamette  Co.  v.  Gordon,  446. 
Willard  V.  Cramer,  209,  226. 
Williams  v.  Baker,  209. 
Williams  v.  Wisnor,  331. 
Williams  v.  Merritt,  334. 
Williams  v.  Teachey,  401. 
Williams  v.  Jackson,  403. 
Williams  v.  Williams,  432. 
AVilliams  v.  Amory,  493,  575. 
Williams  v.  Valkenburg,  527. 
Williams  v.  Downes,  526. 
Williams  v.  Townsend,  561. 
Williams  v.  Kirkland,  566. 
Williams  v.  Ewing,  583. 
Williams  v.  Augusta,  360. 
Williams  v.  Wallace,  599. 
Williams  V.  Rhodes,  324. 
Williams  Estate,  586. 
Wiili;nnson  v.  Berry,  503. 
Williamson  v.  Russell,  560. 
Willotv.  Sanford,  149. 
Wills  V.  Cliandler,  504. 
Wilson  V.  Spring.  296. 
Wilson  V.  Owen,  525. 
Wilson  V.  James.  606. 
Wilson  V.  Russ,  654. 
Wilson  V.  Renter,  388. 
Wilson  V.  Wilson,  31,  252,  547, 
Wilson  V.  Spring,  247. 
Wilson  V.  McKenna,  214. 
Wilson  A'.  Lyon,  458. 
Wilscjn  V.  Eggleston,  458. 
Wilson  V.  Hunter,  67. 
Wilson  V.  King,  43. 
Wils'>n  V.  Sexton,  48, 
Winans  v.  Cheney,  195. 
Wing  V.  Dodge,  492,  513. 


TABLE    OF    CASKS. 


Ixv 


Wing  V.  Hall.  571. 
Wing  V.  Cooper,  373,  375. 
Wing  V.  Railey,  252. 
Wingate  v.  Pool,  317. 
Winklor  v.  Miller.  236. 
Winslow  V.  Winslow.  185,  219. 
Win:<U)\v  V.  Go<^il\viii,  17. 
Wintt-r  V.  Stock,  185. 
Winlir  V.  Croinnieliji.  154,  160. 
Wintlirop  v.  Fairbanks,  198. 
Wisenor  v.  Lindsay,  323. 
Witter  V.  Dudley,  3. 
Wheaton  v.  Sexton,  424. 
Wheeler  v.  Smith.  431. 
Wheeler  V.  Hartshorn,  412. 
Wheeler  v.  Spiiiola,  51. 
Wheeler  V.   Wlneler.  546. 
Wheeli-r  v.    Clutterbuck,  572,  580. 
Wheeler  V.  Schad.  202. 
Wheeler  v.  Willard,  398. 
Whelan  v.  SuUivan,  344. 
Whetstone  v.   Ottawa  University 

275. 
Whitaker   v.  Miller,  183,  194,    210. 

219. 
White  V.  Whitney,  201. 
White  V.  Clover,  317. 
White  V.  Ciawson,  322. 
White  V.  Rittenmeyer,  375,  454. 
White  V.    Patton.  376,  377. 
Wliite  V.  Foster,  255. 
White  V.  Luning,   195. 
\Viiit4'  V.  M(RS('s,  298. 
Willi.-  V.  Davis,  3<ll. 
White  V.  Ham]it<iii.  75. 
Whit«'  V.  Cari>eiit<r.  :!()8. 
Whitf  V.  Hfrniaiin.  314. 
\Vhil<-  V.  M((;arry,  392. 
Whit<'  V.  \Viiit4-.  607. 
Wliit«-  V.  FulK-r.  039. 
Whit«-hali  V.  (Jottwal,  237. 
Whiting  V.  Nicholl.  .5M.5. 
Whiting  V.  Hutlir.  3(l|. 
Whitnion-  v.  I.arn<  d.  .553. 
Whilni.'in  v.  Fisher,  317, 


Whitman  v.  Hennehorry,  211,  212. 

539. 
Whitney  v.  French.  401. 
Whitney  v.  Roberts,  519. 
Whitney  v.  Ry.  Co.,  200. 
Whitney  v.  Whitney,  472. 
Whitridge  v.  Taylor,  333. 
WhitseU  V.  .Mills,  267. 
Wood  V.  Goodridge,  288. 
Wood  V.  Sampson,  409,  436. 
Wood  V.  Bank,  603. 
Wood  V.  Beach,  190. 
Wood  V.  Morehouse,  492. 
Wood  V.  Myrick,  511. 
AVood  V.  Young,  475. 
Wood  V.  Hurd,  52. 
Wood  V.  Griffin,  435. 
WoocLs  V.  Monroe,  512,  516. 
Woods  V.  Hildebrand,  373.  454. 
Woodbury  v.  Dorman,  391. 
Woodfin  V.  Anderson,  581  . 
Woodman  v.  Clapj),  566. 
Woodward  v.  Roberts,  214. 
Woodward  V.  McReynolds.  118. 
Woodward  v.  Harris,  541. 
Woodworth  V.  Payne,  252. 
Woodworth  v.  Raymond.  2.5. 
Wooli.scroft  V.  Norton.  202. 
Word  v.  Douthett,  538. 
Work  V.  Welland,  376. 
Worth  V.  Branson,  114,  IKi,  113. 
Worrall  v.  Munn,  2S7. 
Wriglit  v.  Sperry,  2(t2. 
Wright  v.  Tiiisley.  351. 
Wrigiit  V.  Dulield,  2(>7. 
Wright  V.  Howell,  251. 
Wright  v.  Marsh.  53H. 
Wright  V.   Walker,  .561. 
Wright  V.  Young.  451. 
Wriglit  V.  Day,  171. 
Wright  V.  Dunn.  111. 
Wylly  V.  (lazan,  219. 
Wynian  v.  Farn-r.  19H. 

Yaeklu  V.  WiglilMian,  115. 


Ixvi 


TAlil.l':    <iK    CASKS. 


YaJi(M)la  Mining  <^<'-  ^-  I'l'V, 
Yale  V.  FlaiKJt'rs.  'J(»(J. 
Yard  v.  Muriy,  438. 
Yarnall*H  Aj>pf>fil,418. 
York  V.  Oawford,  .")2fi. 
Yoseinite  Valley  case,  07. 
Young  V.  Oailbeau,  210. 
Young  V.  Cliiiiiingcr,  11)7. 


;S5. 


Young  V.  Young,  IliS. 
Yount  V.  Howell.  1:51. 
Youse  V.  Forniiin,  MO. 

Zeigler  v.  Hughes,   ;588. 
Zahnn  v.  llaller,  204. 
Zirkle  v.  MiC  lie,  511. 


ABSTRACTS 


EXAMINATIONS  OF  TITLE. 


CHAPTER  I. 

PRELIMINAEY  OBSERVATIONS. 

§  1.  Introductory  remarks.  §  7.  Abstracts  and  examinations 

2.  Aljstraots  defined.  distinguished. 

3.  Origin  of  abstract.  8.  Qualifications  of  the  exam- 

4.  Essentials  of  the  abstract.  iner. 

5.  Tlie  English  method.  9.  Liabihty  for  eiTor. 

6.  The  ^\juerican  method.  10.  Duty  of  furnishing  abstract. 

§  1.  Introductory.  "Within  comparatively  recent  years 
the  business  of  furnishing  abstracts  of  title  has  grown  tt> 
enormous  proportions  in  the  United  States,  calling  for  a 
cla.ss  of  highly  skilled  conveyancers,  with  special  training 
and  cjualifications  for  the  work,  while  the  examination  of 
titles  hiLS  almost  created  a  new  de})artment  of  the  law.  To 
a.ssist,  in  an  liumble  way,  this  large  and  constantly  increas- 
ing cla.ss  of  practitioners,  b}'  a  statement  of  tlie  most  approved 
methfxls  of  C()m])iling  and  arranging  the  absti'act,  the 
sources  of  infonnation  and  the  aids  derived  from  indices  and 
references,  together  with  a  brief  review  of  the  general  ])rin- 
ciples  of  law  applical>le  to  the.  examination  of  titles,  will  be 
the  object  of  this  work.  In  the  latter  respect  it  is  neces- 
sarily   brief  and  consequently  elementary  and  is  intended 

(1) 


3  ABSTRACTS   OF   TITI.E. 

mtlior  as  a  scries  of  hints  and  suggestions  tliat  may  incite 
the  examiner  to  more  extended  inquiry,  than  us  a  lull  eluci- 
d:iti(jn  of  the  hnv  on  the  subjects  enumerated. 

§  2.  Abstracts  Defniod.  An  abstract  may  be  defined  as  a 
condensed  history  of  the  title  to  land,  consisting  of  a  syn- 
0})sis  or  summary  of  the  material  or  operative  portion  of  all 
the  conveyances,  of  whatever  kind  or  nature,  ^vllich  in  any 
manner  affects  said  land,  or  any  estate  or  interest  therein, 
togetlier  with  a  statement  of  all  liens,  charges  or  liabilities 
to  which  the  same  may  be  subject,  and  of  which  it  is  in  any 
way  material  for  purchasers  to  be  a})})rised.  It  is  ar- 
ranged, usualh',  in  chronological  order  and  is  intended  to 
show  the  origin,  course  and  incidents  of  the  title  without 
the  necessity  of  referring  to  the  original  sources  of  informa- 
tion. 

§  3.  Origin  of  Abstracts.  Though  the  use  of  abstracts 
lias  now  become  universal,  where  free  alienation  of  land  is 
permitted  and  pro])erty  rights  are  recognized,  but  little  can 
be  said  as  to  the  origin  of  the  custom.  The  first  English 
works  on  the  subject,  published  during  the  first  half  of  the 
present  century,  treat  of  the  abstract  as  an  established  fact, 
but  make  no  mention  of  the  ])eriod  at  which  it  first  began 
to  be  used. 

During  the  earlier  years  of  the  United  States  but  little 
attention  was  paid  to  title  in  purchases  of  real  estate.  Ordi- 
narily the  buyer  was  fully  satisfied  with  a  "  warrantee  " 
deed,  the  covenants  being  taken  as  conclusive  evidence  of 
all  they,  recited.  No  inquiry  was  made  into  the  past,  pos- 
session being  usually  a  sufficient  guarantee  of  ownership, 
and  no  thought  was  taken  as  to  the  future.  Transfers  of 
land  were  frequently  accompanied  by  the  vendor's  deeds  and 
other  muniments  upon  which  the  title  was  based,  and  such 
may  still  be  the  custom  in  some  parts  ot  the  country.  But 
with  the  flood  of  years  the  increasing  commercial  activity 
of  the  age,  the  removal  of  property  disqualifications  and 
impediments  to  alienation,  has  come  a  vast  accumulation  of 
evidences  of  title,  frequently  involving  complex  interests 
and  curious  intricacies,  that  call  for  a  hi^^h  deforce  of  skill  to 


PKELmrNAEY    OBSEKVATIONS.  3 

arrange  and  classify,  as  well  as  to  interpret  and  adjust. 
Land  too,  has  acquired  in  many  localities  an  almost  fabulous 
value  and  purchasei-s  now  part  warily  with  their  money  and 
only  on  strong  assurance  of  title.  It  is  no  longer  practical, 
save  in  rare  instances,  to  examine  title  by  specific  inspection 
of  the  original  documents,  were  such  always  available,  or  to 
laboriously  follow  on  the  records  the  various  mutations 
through  which  it  has  passed.  Yet,  as  purchasers  take  at 
their  peril,  save  as  they  may  find  protection  in  the  cove- 
nants, it  is  necessary  that  they  should  be  apprised  of  what- 
ever may  affect  the  validity  of  the  title  or  estate  they  take, 
of  which  the  law  charges  them  with. actual  or  constructive 
notice.  To  satisfy  this  demand  has  been  developed  the 
modern,  abstract  of  title,  together  with  its  incident,  the 
examiner. 

§  -i.  Essentials  of  tlie  Al)stract.  Without  going  into 
detail  at  this  time  it  may  be  stated  generally,  that  the 
abstract  should  convey  all  the  material  information  con- 
tained in  the  original  documents  and  records  from  which  it 
is  compiled,  and  that,  as  fully  and  completeh^as  if  they  had 
been  specifically  inspected.  It  should  show  (when  from 
the  source  of  title)  the  ince])tive  measures;  the  foundation 
of  title;  the  course  of  same  to  date  of  examination,  includ- 
ing every  transfer  of  any  and  every  interest;  the  incidents 
of  the  land  itself,  divisions  and  sulnlivisions;  any  and  all 
adverse  titles  or  claims;  all  liensorcharges,  however  created, 
including  judgments  against  the  pereon  during  the  period 
the  law  makes  them  a  lien  on  land,  taxes,  sjiecial  assess- 
ments, and  statutory''  liens;  and  every  other  matter  or  tiling 
appearing  of  record  that  may  affect  or  impair  the  title.  To 
these  may  be  added  any  matter  hijmis,  that  to  the  exainiiuM" 
may  seem  pertinent  or  mato-ial. 

§  5.  The  Eni;lisli  Met  hod.  According  to  ]*rcston,'  it  is 
the  custom  in  England  when  land  or  othci-jn-opci-ty,  which 
does  not  pass  by  mere  di'livery  but  is  lidd  by  a  titled<'|)cnd- 
ing  on  d<x;umental  evidence,  is  sold,  for  the  solicitor  fur  the 

'  1   I'n-Hton  on  /.letructa,  1. 


4  AOJSTllACTS    OF   TITLE. 

Vendor  t<»  i>r('|):ir('  nn  ;il)sti'act  of  title,  and  the  solicitor  for 
the  ]>invliaser  to  coiui)are  the  abstract  so  rurnisiird,  witii 
the  deeds,  wills,  etc.,  to  see  tiiat  it  contains  a  correct  and 
t'ailhrul  statement  of  all  circumstances  disclosed  by  them 
relevant  to  the  title,  or  dependin^^  on  extraneous  facts;  as 
marria^-(>s,  burials,  baptisms,  descents,  etc.,  which  mav'^  be 
material  to  the  title.  The  abstract  is  prepai'ed  from  the 
ori;j;-inal  documents,  the  vendor  retaining  such  of  his  title 
deeds  as  relate  to  or  cover  other  pro{)erty  than  that  sold  (as 
also  the  custody  of  all  other  documents  until  consunnnation 
of  sale),  and  is  delivered  to  the  purchaser  who  founds  on  it 
such  "  requisitions  "  (by  way  of  further  inquir}'  or  objection) 
on  the  vendor's  title  as  he  thinks  proper;  the  purchaser 
must  then  send  in  his  objections  and  queries  in  respect  to 
title  and  other  matters  appearing  on  the  abstract  within  a 
limited  time  from  the  date  of  delivery,  and  in  default  of 
such  requisitions  or  objections  he  will  be  deemed  to  have 
accepted  the  title.  The  objections  and  queries,  w^lien  made, 
are  answered  by  statements  and  observations,  signed  by  the 
solicitor  or  party  making  them,  and  form  a  part  of  the 
abstract.*  The  method  of  abstracting  the  instruments  and 
arranging  the  chain,  differs  in  no  material  respect  from  that 
now  commonly  in  use  in  the  United  States. 

§  6.  Tlie  Ainericaii  Method.  Aside  from  the  arrange- 
ment of  indexes  and  references,  there  is  no  system  of  title 
abstracts  that  can  be  said  to  be  distinctively  American,  the 
methods  varying  somewhat  in  the  different  sections,  though 
preserving  a  general  similitude.  The  spirit  and  operation 
of  our  laws,  and  the  many  legal  usages  ]>eculiar  to  the  coun- 
try, preclude  the  adoption  of  the  English  methods  to  any 
appreciable  extent,  although  the  abstract  makers  of  the 
Kastern  States  still  follow  as  closely  as  possible  in  the  foot- 
steps of  their  English  predecessors,  and  their  "work  is 
built  upon  the  regulation  English  model.  In  the  Middle 
and  "Western  States,  the  o])eration  of  the  United  States  land 
laws,  the  later  methods  of  survey  and  subdivision,  and  the 

'  Deane's  Conveyancing,  325;  Lee  on  Abstracts,  20. 


PRELIMINARY    OBSERVATIONS.  5 

almost  total  annihilation  of  the  old  common  law  rules 
relative  to  the  acquisition  and  transfer  of  real  estate,  have 
caused  a  wide  departure  from  the  conventional  system 
expounded  by  Preston,  Moore  and  other  English  writers, 
as  Avell  as  that  noAV  (or  formerly)  used  in  the  Colonial 
States.  The  American  abstract  is  not  prepared  from  the 
original  documents,  but  from  recorded  evidences  found  in 
the  offices  of  registration,  courts,  and  other  legal  depositories, 
and,  as  a  rule,  shows  only  sucli  title  as  is  deducible  of  record. 
It  is  not  identical  with  the  English  "  abstract,"  as  will  be 
seen,  and  by  way  of  distinction  is  usually  termed  an  "  exam- 
ination." The  terms,  however,  are  used  interchangeably  by 
the  profession  and  are  practically  synonymous.  In  compil- 
ing the  abstract,  the  examiner  simply  collects,  condenses 
And  arranges  the  information  found  of  record,  without  any 
expression  as  to  the  rights  of  any  of  the  parties  named 
therein,  the  work  being  then  turned  over  to  counsel,  who 
critically  examines  each  instrument  shown,  or  statement 
made;  decides  upon  the  sufficiency  and  legal  effect  of  the 
conveyances,  noting  any  defects  or  irregularities  therein,  or 
in  an}"-  of  the  proceedings  necessary  to  divest  or  acquire  title; 
determines  the  relative  rights  and  legal  relations  of  the 
parties  to  the  land  in  question  and  to  each  other;  and 
finally  formulates  his  views  in  a  written  opinicm  whii-li  is 
annexed  to  the  abstract,  and  on  the  strength  of  which 
future  sales  or  other  disi)osition  of  the  property  are  usually 
made. 

§  7.  Abstracts  and  Examinations  Distiiiujuisliod.  As 
before  stated  the  terms  (i/>sfri(ctiim\  ci'iunimttioii  in  their  or- 
dinary acc(.']>tati')n  are  synonymous,  but  for  the  ])ur|)ose  of 
delining  the  broad  scojie  of  llicii-  in(juiiy,  as  coni])are(l  w  ith 
the  narrowiu^ss  and  siniileness  of  the  English  method, 
American  abstract  niakei-s  usually  ])refer  the  lattei*  term  to 
designate  their  woilc.  'i'he  English  al)stract  is  ))ersonal  in 
its  object.  It  seeks  only  to  show  th(^  tith;  of  sonu;  paiticu- 
lar  individual,  rather  than  the  general  condition  of  the 
IM'ojKJi'ty,  and  is  ex[)resse<I  in  the  caption  to  be,  "  An  abstract 


6  ABSTRACTS    OF   TITLE. 

of  tlit^  title  of  John  Doe,  Esq.,  to  that  certain  messuage,"  etc. 
The  niitiire  of  tlio  English  land  tenures  and  the  peculiar 
condition  of  real  projierty  in  that  country  preclude  a  gen- 
end  showing  of  the  origin  or  course  or  title  for  any  consid- 
eral)le  period,  nor  would  that  perhaps  be  necessary.  It 
commences  usually  with  some  specific  document,  as  a 
deed  or  will,  or  frequently  W'ith  a  descent,  and  from 
this  point,  called  the  "root  of  title,"  and  covering  a 
perio(l  of  at  least  sixty  years,  shows  the  successive  links  that 
connect  the  vendor's  present  title  with  the  "  root,"  *  Ob- 
viously, such  an  abstract,  however  well  it  might  serve  the 
purpose  in  England,  would  be  most  inadefjuate  in  the 
United  States,  where  several  persons  frequently  claim  title 
throuirh  dilTerent  channels  from  the  same  source,  not  to 
mention  the  many  adverse  titles  springing  from  independent 
sources.  "  A  perfect  abstract  of  title,"  says  Preston, 
"  means  a  perfect  title  in  the  vendor,"  and  "  a  condition  that 
vendor  shall  deliver  an  abstract  of  title,  means,"  says  Sugden, 
"  the  deliver}'  of  an  abstract  showing  a  good  title."  '  The 
American  abstract,  though  confined,  as  a  rule,  to  matters  of 
record,  presents  a  far  wider  range.  While  intended  pri- 
marily to  show  the  present  state  of  the  vendor's  title,  it  does 
not  in  terras  purport  such,  but  is  a  general  inquiry  into 
every  matter  or  thing  in  any  way  affecting  the  title  to  the 
land,  in  whomsoever  it  may  rest  and  however  arising  or 
acquired.  A  "  perfect  abstract  "  shows  the  true  state  of  the 
title,  even  though  it  defeats  that  of  the  vendor,  and  one  that 
is  defective  in  any  of  the  particulars  heretofore  noted  is  not 
"  perfect "  even  though  it  may  show  "  a  perfect  title  in  the 
vendor."  The  caption  of  the  American  abstract  expresses 
its  true  purpose :  an  "  examination  of  title  to  the  N.  E.  ^," 
etc.  It  has  none  of  the  ])ersonal  features  that  characterize 
the  English  abstract,  and  is  decidedly  an  examination  in 
rem. 

§  8.  Qualifications  of  tlie  Examiner.     In  a  recent  Minne- 
sota case,  Flandi'au,  J.,  reviewing  the  labor  and  skill  iicces- 

'Deane's    Conveyancing,  325;   1       '2  Sugd.  V.  &  P.  27. 
Preston  on  Abstracts,  5. 


PKELIMINARY    OBSERVATIONS.  T 

sarily  displayed  in  tlie  compilation  of  an  abstract,  says : 
"  That  the  making  of  a  perfect  abstract  of  title  to  a  piece  of 
land,  with  all  the  incumbrances  which  affect  it,  involves  a 
great  exercise  of  legal  learning  and  careful  research,  no  one 
will  dispute.  The  person  preparing  such  an  abstract  must 
undei-stand  fully  all  the  laws  on  the  subject  of  conveyancing, 
descent  and  inheritances,  uses  and  trusts,  devises,  and  in  fact 
every  branch  of  the  law  that  can  affect  real  estate,  in  its  vari- 
ous mutations  from  owner  to  owner,  sometimes  by  operation 
of  la\v,  and  again  by  act  of  the  parties."  *  Should  the 
examiner  possess  the  varied  accomplishments  enumerated 
by  the  learned  judge,  he  ^\ill  lind  it  much  to  his  advantage 
in  the  prosecution  of  his  work,  yet  it  by  no  means  follows 
that  he  may  not  become  proficient  while  lacking  many  of 
the  essentials  above  prescribed.  The  abstract  maker  is,  in 
the  full  sense  of  the  word,  a  conveyancer,  equally  with  him 
who  draughts  and  prepares  the  original  instruments.  The 
difference  is  in  degree,  not  in  kind.  The  same  laws  which 
control  and  direct  the  conveyancer  in  the  preparation  of  the 
originals,  operate  with  equal  effect  in  the  compilation  of  the 
abstract,  and  a  general  knowledge  of  such  laws  and  their 
application  is  an  indisj^ensable  requisite,  as  are  also  the  prin- 
ciples of  surveying  and  i)latting.  The  effect  of  laws  relative 
to  conveyancing,  real  estates  and  titles,  and  the  manifold  and 
perplexing  questions  concerning  the  rights  and  interests  of 
parties  that  may  arise  under  them,  are  su1)jects  which  should 
properly  be  left  to  the  counsel  who  is  to  examine  and  jiass 
upon  the  title.  Occasionally  the  same  person  fills  both 
offices,  though  this  is  rare  save  in  smaller  ])laces  or  s]iarsely 
settled  districts,  and  as  a  rule  the  union  is  not  productive  of 
good  results. 

§  9.  Liability  for  Error.  The  degree  of  intclligencp  and 
skill  required  <A'  a  man  hy  the  law,  dcjx'iids  iiiiich  upon  his 
callin;r.  A  ))rofi'Ssional  man  must  he  specially  edu('ate(|  oi* 
fitted  for  the  duties  of  his  vocation,  and  in  addition  to  the 
rwjuisito  tc>chiiic;il  laio\vle(l;,'-(.  niust  h;ive  i-e;ison;iliIe  skill  in 
its  application.     So  the  llll(j(•|•st;ln(lin^•  iiiqilicd  I'l-oin  pci-.^ons 

'  IJ.uikcr  t'.  CjiMwcli,:!  Minn.  ill. 


8  ABSTRACTS    OF   TITLE. 

engai^ed  in  tlio  business  of  searching  tlie  public  records, 
examining  titles  to  real  estate,  and  making  abstnicts 
thereof  for  C(^mpensation  is,  that  they  are  possessed  of  the 
requisite  knowledge  and  skill  and  will  use  due  and  ordinary 
care  in  the  performance  of  their  duties.'  For  a  failure  in 
eitlier  of  these  respects,  resulting  in  damages,  tlie  party 
injured  is  entitled  to  recover."  Kor  can  the  examiner  limit 
his  liability  by  a  clause  in  the  certificate  appended  to  the 
abstract  without  specially  calling  his  client's  attention  to  it. 
It  does  not  seem,  however,  that  the  em})loyment  involves 
any  elements  of  guaranty,  further  than  the  undertaking  to 
bring  to  the  discharge  of  the  duty  reasonable  skill  and  dili- 
gence.' 

But  to  fix  tlie  liability  of  the  examiner  there  must  be 
privity  of  contract  with  the  injured  party,  for  he  can  be 
held  answerable  for  his  errors  only  to  the  person  who  has 
employed  him,*  and  where,  in  the  absence  of  fraud,  collusion 
or  falsehood,  the  examiner  has  made  an  erroneous  certificate, 
upon  the  strength  of  which  a  third  person  ha"s  loaned  and 
lost  money,  no  liability  will  attach,  notwithstanding  the 
fact  that  the  money  was  advanced  on  the  assurances  of  the 
abstract,  and  to  the  person  who  had  caused  the  same  to 
be  made.'  It  has  further  been  held,  that  the  examiner  is 
under  no  obligation  to  show  anything  not  arising  within  the 
dates  of  his  examination,  even  though  it  be  at  the  time  a 
valid  and  subsisting  lien  upon  the  land;  nor  is  he  bound  to 
inquire  or  state  whether  the  title  vested  in  any  grantee  dur- 
ing the  period  covered  by  his  examination  was  affected  by 

'  Chase  v.  Heaney,  70  111.  2G3.  "  Savings  Bank  v.  Ward,  100  U. 

*  Soheld  where  the  examiner  had  S.  193;  Dundee  Mtg.  Co.  v.  Hughes, 
omitted  to  note  on  the  abstract  a  20  Fed.  Rep.  39.  A  contrary  doc- 
judgment  against  tlie  property  for  ti'ine  was  annoimced  in  the  recent- 
taxes,  and  its  subsequent  sale  to  ly  decided  case  of  Dickie  u.  Abstract 
satisfy  same:  Chase  v.  Heaney,  70  Co.,  89  Tenn.  431,  but  the  decision 
111.  2GS;  Clark  v.  Marshall,  34  Mo.  is  imsupported  by  authority  and 
429;  Bank  v.  Ward,  100  U.  S.  195.  in  direct  contraveutioh  of  accepted 

*  Dundee  Mtg.  Co.  v.  Hughes.  20  legal  rules. 

Fed.  Rep.  39:  Houseman  f.  Girard  -Savings    Bank    v.   Ward,    100 

Loaii  Ass'n,  81  Pa.  St.  256.  U.  S.  195. 


PKELIMINAEY   OBSEEVATIONS.  9 

any  prior  conveyance,  or  any  estoppel  growing  out  of  any 
covenants  therein.' 

The  relation  of  confidence  which  subsists  between  parties 
engaged  in  the  business  of  making  abstracts  of  title  and 
those  who  employ  them  is  not  unlike  that  existing  between 
attorney  and  client,  and  they  are  equally  held  to  a  strict 
responsibility  in  the  exercise  of  the  trust  and  confidence 
which  are  reposed  in  them.' 

TVith  respect  to  this  subject  a  distinction  must  further  be 
kept  in  mind  between  persons  engaged  in  the  business  of 
compihng  abstnicts  as  an  ordinary  occupation,  and  public 
officei-s  who  furnish  same  as  a  part  of  their  officiaf  duty. 
Abstracts  are  frequently  made  by  recorders,  clerks  and  pro- 
thonotaries,  and  in  some  States  tlieir  liability  is  prescribed 
and  regulated  by  statute.  Under  these  statutes  such  officers 
are  often  declared  liable  for  all  loss  or  damage  which  may 
happen  by  reason  of  any  false  or  erroneous  certificate  of 
search,  not  only  to  the  person  or  persons  to,  for,  or  upon  whose 
oixiler  the  said  certificate  was  made  or  given,  but  also  to  any 
person  claiming  title  through,  from  or  under  them,  or  who 
may  suffer  loss  by  reason  of  the  making  of  such  false  or 
erroneous  certificate.* 

§  10.  Duty  of  Fiirnisliing  Abstract.  In  England  a  pur- 
chaser may,  it  seems,  require  to  be  f urnislied  with  an  abstract 
of  the  seller  s  title,  even  thougli  he  may  have  already  agreed 
to  accept  the  same,  and  he  may  retain  such  abstract  dui'ing 
the  negotiations  upon,  and  even  after  rejection  of,  the  prof- 
fered title,  until  thedisj)ute  is  finally  settled,  f(tr  the  pur|)ose 
of  showing  the  grounds  of  such  rejection.*  It  will  be 
remembered,  however,  that  an  English  abstract  isfre(iiiciitly 
only  a  digest  of  the  title  deeds  and  muninients  relied  on  liy 

'  WakcfK'ld  V.  Clunvf-n,  20  Minn.  jtcriod  covcn'd  liy  tlic  Hfjinli,  ac- 

370.     In   tliis   ca.s«    tlio    fxainiiicr  <]uirc(l  titl<'  to  the  Kanir. 

failwl   to  show   a  jud^'tH.-nt  rcn-  «  ValU-ttt.' r.  Titlt-n.s,   122  III.  (iOT. 

drnd  af^ainwt  one  wlio  at  tln!  lime  *  With  nspect  to  tlie  liability  of 

(jirior  t<j  the  coninienccniont  of  the  attorneys  for  erroneous  opinions, 

examination)  ha<i  no  inten-Ht  in  tlie  see  Chap.  XXXII,  jxwt. 

Huhje<-t  of    the  examination,   but  *  Setf  2   Su^d.    Vcml.    *J'J;  Dart, 

who  Huljsiwjui-ntiy,  and  duriii;^  the  Vend.  (.\m.  Ia\.)  \'M). 


10  ABSTRACTS    OF   TITI-E. 

the  vondor  to  establish  liis  claim,  and  which  invariably 
ax?conii)any  the  abstract  for  examination  and  comparison. 
The  abstract  so  furnished,  therefore,  is  rather  in  the  natiiie 
of  a  well-arranged  index  to  accompany  documents,  and  is 
prepared  primarily  for  their  more  convenient  and  systematic 
perusal.  An  American  abstract,  on  the  contrary,  is  intended 
to  furnish  within  itself  a  full  exposition  of  title,  and  to 
obviate  the  necessity  of  referring  to  the  original  sources  of 
information.  In  the  former  case  the  deeds  and  muniments 
are  in  the  hands  or  under  the  control  of  the  vendor,  and  the 
reason  of  the  English  rule  is  obvious  from  this  fact  alone. 
But  in  the  United  States  the  changed  conditions  of  the 
evidences  of  title,  the  actual  and  constructive  notice  im- 
parted'by  registration,  and  the  access  which  the  ])urchaser 
has  to  iiiformation  concerning  the  title,  would  seem  to  render 
inoperative  the  English  rule  by  removing  the  reason  which 
occasioned  it;  and,  while  it  is  customary  in  this  country,  as 
in  England,  for  the  vendor  to  prepare  and  furnish  an  abstract 
of  title,  either  pending  or  after  consummation  of  the  sale,  it 
does  not  appear  that  this  can  be  demanded  as  a  matter  of 
right,  but  is  rather  the  result  of  the  contract  or  conditions 
of  sale. 

In  England,  where  titles  are  not  registered,  the  vendor,  in 
order  to  show  performance  or  an  offer  to  perform  on  his 
part,  whether  in  an  action  at  knv  for  the  purchase  money  or 
a  suit  in  equity  to  compel  performance  by  the  vendee,  must 
affirmatively  prove  his  title.  In  this  country,  w^here  titles 
are  matters  of  record,  and  at  all  times  open  for  inspection, 
a  ditfei-ent  rule  prevails.  This  doctrine  has  often  been 
assumed  in  actions  by  the  vendor  for  the  purchase  money;' 
and  it  has  been  expressly  held,  in  equity,  that  a  vendor  may 
rely  upon  his  tender  of  convevance  without  producing  the 
evidences  of  his  title,  the  burden  being  upon  the  purchaser 
to  show  such  a  defect  as  would  justify  him  in  refusing  to 
acce])t  the  deed.' 

'Little  V.  Paddleford,  13  N.  H.  308;  Daily  v.  Litclifiekl,  10  Mich. 
167.  38. 

'Espy  V.  Andereon,   14  Pa.   St. 


PRELnriNAKY   OBSERVATIOXS.  11 

But  wliilc  the  furnisliing  of  an  abstract  can  not  be  said  to 
be  demandable  as  a  matter  of  legal  right,  even  where  a  cus- 
tom to  tliat  effect  may  prevail,  it  is  nevertheless  a  condition 
precedent,  in  most  sales,  by  the  ex])ress  agreement  of  tlie 
parties.  Where  parties  make  a  contract  for  the  sale  or 
exchange  of  lands  which  provides  for  the  exhibition  of  an 
abstract  showing  title  in  the  proposing  parties  by  a  day 
named,  this  is  a  condition  precedent  to  be  performed  before 
either  party  in  case  of  an  exchange,  or  the  vendor  in  case  of 
sale,  can  call  upon  the  other  to  perform  the  agreement;  and, 
if  the  abstract  is  not  satisfactory  or  fails  to  show  the  title 
agreed  to  be  made,  the  other  may  elect  to  consider  the  con- 
tract at  an  end.* 

If,  on  the  sale  of  land,  it  devolves  on  the  vendor  to  fur- 
nish an  abstract,  on  the  delivery  and  accej)tance  of  the  deed 
it  becomes  the  ])roperty  of  the  purchaser,"  and  so,  where  the 
owner  of  land,  about  to  execute  a  mortgage,  delivers  to  the 
mortgagee  an  abstract  of  title  to  the  premises,  it  becomes 
part  of  the  security  for  the  loan,  and  the  mortgagor  is  not 
entitled  to  the  possession  of  it  until  the  mortgage  is  paid  or 
discharged.* 

11    Ab.   rr. 


'Howe    V.   nutchison,    105    111, 

8TTohn    V.    Wiist, 

501. 

(N.  Y.)  N.  S.  113. 

'.Chapman  v.  Lee,  55  Ala.  G16. 

CIIArXER   II. 


TITLE  TO  REAL  PROPERTY. 


g  1.     Pi-operty    and    title    distin-      §  8.     Powers. 


Ruirihod. 

9. 

Homesteads. 

2. 

Title,  how  aoquired. 

10. 

Dower  and  curtesy. 

3. 

Classification  of  title. 

11. 

Easements  and  servitudes. 

4. 

Sources  of  title. 

12. 

Tenancies. 

5. 

Nature  of  title  in  the  U 

nitod 

13. 

Color  of  title. 

States. 

14. 

Evidences  of  title. 

C. 

Estates  under  allodial  titles. 

15. 

Alienation  and  descent. 

7. 

Uses  and  ti-usts. 

§  1.  Projierty  and  Title  Dislingiuished.  A  well  defined 
and  strongly  marked  distinction  has  been  made  by  leading 
writers  on  the  subject  of  real  estate,  between  the  property 
or  interest  which  one  has  in  lands,  tenements  and  heredita- 
ments, and  the  means  whereby  same  are  held,  or  the  mode 
by  which  they  are  acquired.  This  property  or  interest  in 
lands,  of  whatever  kind  or  nature,  is  described  in  the  com- 
prehensive term  estate.  The  method  of  acquiring  or  holding 
same  is  denominated  title.  The  subject  of  estates,  with  their 
quantities,  qualities,  extent  and  other  attributes,  belongs  to 
a  treatise  on  real  property,  and  will  be  alluded  to  in  this 
work  only  as  they  incidentally  occur  in  treating  of  the  man- 
ner by  which  such  estates  are  acquired  or  held. 

§  2.  Title,  How  AcJiuired.  It  may  be  stated  as  an  ele- 
mentary proposition,  to  which  all  writers  and"  jurists  agree, 
that  there  exist  but  two  modes  of  acquiring  title  to  real 
property:  namely,  by  descent  or  purchase,  the  latter  term 
including  every  legal  method  of  acquisition,  except  that  by 
which  an  heir,  on  the  death  of  an  ancestor,  succeeds  to  the 

(12) 


TITLE   TO    REAL    PKOPERTY.  13 

estate  of  the  latter  by  operation  of  law.'  The  common  law 
estates  of  dower  and  curtesy  have  been  regarded  by  some 
as  properly  coming  within  the  doctrine  of  descents/  wliile 
other  writers  make  a  distinction  in  respect  to  estates  acquired 
by  purchase,  between  titles  created  by  act  of  the  law,  and 
those  by  act  of  the  parties.' 

§3.  Classification  ol  Title.  Blackst one  makes  an  elabo- 
rate division  of  title  considered  in  relation  to  its.  progressive 
development,  and  formulates  the  following  stages :  Naked 
possession;  right  of  possession;  right  of  property  without 
possession,  and  right  of  property  united  with  possession." 
This  classification,  which  has  been  followed  and  approved 
by  most  English  and  many  American  writers,  seems  need- 
lessly prolix  and  a  trifle  confusing.  Judge  Walker  in  allud- 
ing to  it  says :  "  Such  refinements  serve  to  perplex  rather 
than  inform  the  mind.  The  truth  is,  title  means  the  same 
thing  as  ownership.  A  man  may  be  in  possession  of  a  thing 
which  he  does  not  own  and  he  may  own  a  thing  of  which 
he  is  not  in  possession,"  and  draws  the  inference  "  that  the 
perfection  of  title  consists  in  the  union  of  possession,  with 
the  right  of  possession." '  It  nuiy  be  doul)ted  whether 
Blackstone's  subtile  distinctions  arc  now  generally  recognized 
in  this  country,  but  for  purposes  of  comparison  only,  titles 
have  been  classified  as  bad,  doubtful,  good  and  perfect;  the 
latter  being  also  known  as  a  marketable  title,  or  one  which 
a  court  of  equity  considers  so  clear  that  it  will  enforce  its 
acceptance  by  a  purchaser.  A  doubtful  title  on  the  con- 
trary being  one  that  the  court  will  not  go  so  far  as  to 
declare  bad,  but  only  that  it  is  subject  to  so  much  doubt  that 
a  purchaser  ought  not  to  be  comi)elled  to  acce])t  it."  The 
doctrine  of  marketable  titles  is  purely  ecjuitable  and  of  mod- 
ern origin;  at  law,  every  title  not  bad  is  marketable.  A  more 
pronounced  distinction  is  nuide  in  the  case  of  le<jal  ixxuXequi- 

'2    lilk.    Pom.    211;     Jaiiws  v.  *2  Blk.  Com.  lir.. 

Mi»on-,   2     C<iw.     21M);      Urctn  v.  » Walki'r's  Am.  I*iw,  317. 

blaiK-har,  4<)  Cal.   \\i\.  '2   llim.    Law   Diet.    V.Hl;    Kich- 

'3  Crui-s*;  Di^.  IU7.  muiid  v.  Ciray,  15  Allen,  25. 

•Sec  3  \Vm*h.  Hi-., I  rn.|.    1 


14  ABSTRACTS    OF   TITLE. 

tnlilc  titles,  and  tlieir  api)lication  to  estates  is  of  frequent 
occurrence  in  actual  ])ractice.  Though  originally  applied  to 
estates  in  land,  the  terms  are  now  extensively  used  to  des- 
ignate the  manner  of  acquiring  and  holding  same  as  well. 
The  equitable  title  usually  carries  with  it  the  beneficial  in- 
terest in  the  land,  together  with  the  incidents  of  ownership, 
the  legal  title  being  held  as  a  mere  naked  trust,  and  is 
illustrated  in  the  relations  of  the  govermnent  and  a  purchaser 
of  public  land  before  patent  issues;  a  grantee  under  a  land 
contract  after  payment  made  and  before  execution  of  deed, 
and  in  the  less  familiar  example  where  the  legal  title  has  been 
conveyed  to  a  trustee,  the  equitable  ownership  vesting  in 
the  beneficiary  or  cestui  que  trust.  The  abstract  as  a  rule, 
shows  only  the  legal  title,  unless  an  equitable  title  ap])ears 
from  the  recitals  of  the  instruments  or  is  plainly  deducible 
from  facts  appearing  on  their  face. 

§  -i.  Sources  of  Title.  By  the  English  law,  the  king,  as 
the  head  and  sovereign  representative  of  the  nation,  was  the 
original  proprietor,  or  lord  paramount  of  all  the  land  in  the 
kingdom,  and  the  true  and  only  source  of  title.'  From  him 
all  the  lands  in  the  realm  were  held,  either  mediate]}''  or  im- 
mediately, by  a  tenure,  of  which  fealty  was  the  great  charac- 
teristic. This  fealty  was  inseparably  incident  to  the  rever- 
sion and  could  never  be  lost  to  the  ultimate  lord.  The  feudal 
system  contemplated  a  prince — the  sovereign,  and  the  peo])le 
— the  subjects,  but  with  the  assumption  of  American  inde- 
pendence, the  people  in  their  collective  capacity  became 
sovereign,  and  as  such  succeeded  to  the  rights  and  preroga- 
tives formerly  possessed  by  the  king.  So  all  valid  individual 
title  to  land  in  the  United  States  is  derived  only  from  the 
grant  of  the  federal  government,  in  the  case  of  public  lands; 
from  the  State  governments  of  such  of  the  States  as  entered 
the  Union  as  sovereign  bodies  possessed  of  lands;  or,  from 
foreign  powers  prior  to  the  Revolution,  or  the  subsequent 
acquisition  of  the  territory  by  the  government,  the  vested 
rights  of  the  land  owner  being  recognized  in  the  latter  case 

'  3  Kent  Com.  487;  3  Blacks.  Com.  51. 


TITLE    TO    EEAL   PROPERTY.  15 

by  treaty  at  the  time  of  the  cession,  or  by  subsequent  con- 
firmation.' The  king  not  only  possessed  the  original  but 
also  the  ultimate  title,  an  assumption  that  has  never  been 
made  by  the  general  government,  which  parts  with  all  its 
title  by  its  grant  or  patent.  The  people  of  the  States,  how- 
ever, in  their  sovereign  capacity,  arc  declared  to  possess  the 
ultimate  property  in  and  to  all  lands  within  the  jurisdiction 
of  the  State,  the  title  to  which  shall  fail  from  defect  of  heirs,^ 
though  the  character  in  which  the  State  takes  is  rather  that 
of  a  statutory  heir  of  jiroperty  on  default  of  known  kin- 
dred of  the  decedent/ 

§  5.  Nature  of  Title  in  the  United  States.  When  by 
the  Eevolution,  the  domination  of  the  mother  country  was 
thi'own  off,  the  State  in  its  sovereign  capacity,  succeeded  to 
the  titles  of  the  king  and  became  the  proprietor  of  all  the 
lands.*  But  instead  of  lending  them  like  a  feudal  lord  to  an 
enslaved  tenantry,  she  sold  them  for  the  best  price  they 
would  bring,  or  with  more  than  princely  generosity,  con- 
ferred them  upon  her  citizens  as  a  reward  for  industry  and 
courage  in  the  development  and  settlement  of  the  countrv, 
or  in  recognition  of  valor  and  patriotic  devotion  in  her  de- 
fense. Her  patents  all  acknowledge  a  pecuniary  or  valu- 
able consideration,  and  stipulate  for  no  fealty  or  other  feu- 
dal incident.  "  The  State  is  lord  paramount  as  to  no  man's 
land."  *  Though  here,  as  in  England,  individual  ownership  in 
lands  can  be  deduced  only  from  the  sovereign — the  Crown, 
the  ante-revolutionary.  United  States,  or  State  governments 
— yet  when  so  acquired  it  is  held  in  ]mre  and  free  allodium, 
being  the  most  ample  and  perfect  interest  that  can  be  ob- 
tained in  land  and  denoting  a  full  and  absolute  ownership;' 
"  a  time  in  the  land   without  end'"  with  no  duties  to  a  su- 

'  3  Kf-nt  Cfjm.   488;    Jackwm   v.  Cnsh.  82;  Johnson  v.   Mcintosh,   8 

In^ri-ah-'ini,  4  JohnH.    HW;    Juckuon  Wheat.  584. 

V.  Hart.  12  Jolms.  77.  '  WaHafc  v.  Ilarmstad.  44  Ponn. 

»3  Kt-nt  Com.   488;     P.-opIo    v.  St.  4'J2;  Van  Kaiist'llar  v.  Siiii(h,27 

Livinp^ton,  8  Barh.  253.  Uarl).  157. 

MValhice  «.    IlarniKtad,    44    I'a.  « 1  lion.  Law  Diet.  1 15;   1   Wash. 

St.  4»2.  ]{,:,|  I'mp.  1(J. 

*(^jniriiori»vc:iItlj    v.      Al|,'cr,  '  I'lowdc  ii,  555. 


IG  ABSTRACTS   OF   TITLE. 

]H'titir Inid.  or  services  or  fealty  incident  thereto.  Tlie  alle- 
giance wliicli  the  citizen  owes  to  the  State  is  fre(juently 
spoken  of  as  fealty,'  but  tliis  is  an  obligation  arising  from 
our  political  economy  and  is  as  binding  on  him  who  owns 
no  land  as  on  him  who  counts  his  acres  by  the  thousands. 
It  is  an  obligation,  reciprocal  to  protection,  resulting  from, 
and  growing  out  of  our  political  relations,  and  in  no  way 
affects  the  title  to  land  more  than  to  cliattels.' 

It  is,  however,  a  well-settled  ]mnci]ile,  growing  out  of  the 
nature  of  well-ordered  civil  society,  that  every  holder  of 
property,  however  absolute  and  unqualified  may  be  liis  title, 
holds  it  under  the  implied  liability,  that  its  use  may  be  con- 
trolled and  regulated  b}'"  the  State  in  such  a  manner  as  not 
to  interfere  with  the  equal  enjoyment  by  others  of  their 
pro])erty,  nor  be  injurious  to  the  rights  of  the  community,' 
and  subject  to  such  laws  as  the  legislature  may  enact,  to 
regulate  the  mode  of  conveyance,  descent,  right  of  dower  or 
other  rights  growing  out  of  the  domestic  relations.*  All 
property  is  held  subject  to  those  general  regulations  estab- 
lished by  law,  which  are  necessary  to  the  common  good  and 
general  welfare. 

§  G.  Estates  uiulcr  Allodial  Titles.  The  highest  estate 
held  by  an  allodial  title  is  denominated  a/<?<?  simple;  a  name 
borrowed  from  the  land  system  of  Great  Britain;  but  of  far 
greater  import  here  than  there.  It  signifies  an  absolute 
estate  of  inheritance,  clear  of  any  restrictions  to  particular 
heirs,  and  is  the  largest  estate  and  most  general  interest  that 
can  be  enjoyed  in  land,  being  the  entire  property  therein, 
and  confers  an  unlimited  power  of  alienation.' 

Though  usually  described  as  above,  the  estate  is  comprised 
in  the  Avord  "  fee,"  the  addition  of  the  word  "  sim]ile  "  adding 
nothing  to  the  force  and  comprehensiveness  of  the  term." 

'  2  Bou.    Law    Diet.,    585  Art.,  Cush.      53;      Commonwealth      v. 

"  Tenure."  Tcwkesbuiy,  11  Met.  55. 

'Wallace  v.  Harmstad,  44  Penn.  *  Barker  v.  Dayton,  28  Wis.  367. 

St.  492;  Carlisle  v.   United  States,  »  Haynes  v.  Bourn,  42  Vt.  6PG. 

16  Wall.  146.  •  Jecks  v.   Toussing,  45  Mo.  1C7. 

'Commonwealth     v.    Alger,     7 


TITLE    TO    KEAL    PROPERTY.  1  i 

A  sale  of  the  fee  does  not  include,  in  the  term  itself,  a  sale 
free  from  incumbrances,  but  denotes  only  the  nature  of  the 
estate  as  distini^uished  from  a  lessor  or  restricted  one,  and 
land  may  be  sold  in  fee,  subject  to  incumbrances,  the  expres- 
sion involving  no  inconsistency.' 

The  fine  distinctions  of  the  English  law  in  respect  to 
estates  have  little  or  no  apphcation  in  the  United  States, 
and  the  American  doctrines  on  this  subject,  though  regulated 
by  statute  in  the  different  States  and  hence  differing  some 
in  detail,  are  comparatively  simple.  In  addition  to  the  fee, 
or  inheritance,  we  have  estates  for  life,  for  years,  and  at  will 
and  by  sufferance.  The  estate  in  fee  tail  is  abolished,  the 
entail  being  limited  to  the  first  taker,  while  the  remainder 
carries  the  fee  simple  absolute.  Estates  of  inheritance  and 
for  life  are  generally  denominated  "  freeholds ;"  estates  for 
years,  "  chattels  real."  "With  res))ect  to  the  time  of  their 
enjopnent,  they  are  further  divided  into  estates  in  posses- 
sion and  in  expectancy;  the  latter  being  again  divided  into 
estates  commencing  at  a  future  day,  called  future  estates, 
and  reversions.  A  future  estate  is  one  limited  to  commence 
in  possession  at  a  future  day,  either  with  or  without  the 
intervention  of  a  precedent  estate,  or  on  the  determina- 
tion, by  lapse  of  time  or  otherwise,  of  a  ]irecedent  estate, 
created  at  the  same  time.  A  reversion  is  the  residue  of  an 
estate  left  in  the  grantor  or  his  heirs,  or  in  the  heirs  of  a 
testator,  commencing  in  possession  on  the  determination  of 
a  particular  estate  granted  or  devised.  Future  estates  ai'e 
also  clas.sed  as  vested  or  contingent.  They  arc  vested  when 
there  is  a  person  in  being  who  would  have  an  immediate 
right  to  the  possession  of  the  lands,  upon  the  ceasing  of  the 
interme<liate  or  precedent  estate.  They  are  contingent 
while  the  person  to  whom,  or  the  event  upon  which,  tliev 
are  limite<l  to  take  effect,  remains  uncertain.  As  a  general 
rule  contingent  interests  are  assignable,  devisable  and 
descendable  the  same  as  vested  interests.' 

'  C.ial  V.   Hig|^in»,    2'.i  N.  J.  Ivj.       ^ViI»Klo^v  r.  (Joodwin,  7  Met.(Maiw.) 

»Kenyon   v.  Sec,  94    N.   Y.  003; 
2 


IS  ABSTRACTS    OF   TITLE. 

In  respect  to  the  mnnlxT  aiul  connection  of  tlioir  owners? 
estates  are  divided  into  estates  in  severalty,  in  joint  tcsnancy 
and  in  common.'  As  a  rule,  every  conveyance  or  devise  of 
lands  is  to  be  deemed  a  fee  simple,  if  a  less  estate  is  not 
limited  by  ex))ress  words,  or  does  not  a])])ear  otherwise  by 
construction  or  operation  of  law,"  and  future  estates  are 
alienable  in  the  same  manner  as  estates  in  possession,  by 
deed  of  bari^-ain  and  sale  without  covenants.' 

§  7.  Uses  and  Trusts.  The  ancient  doctrine  of  nses  and 
trusts  prevails  to  a  limited  extent  in  the  United  States,  though 
its  elFect  is  by  no  means  uniform.  A  majority  of  the  States, 
following  the'example  of  New  York,  have  abolished  jmssive 
trusts  where  the  trustee  holds  only  the  naked  formal  title, 
the  whole  beneficial  interest  being  vested  in  the  cestxd  que 
trusty  the  statute  confirming  to  such  beneficiary  a  legal 
estate  therein  of  the  same  quality  and  duration,  and  subject 
to  the  same  conditions,  as  his  beneficial  interest.''  The  doc- 
trine of  resulting  trusts  has  been  much  modified,  and,  as  a- 
rule,  no  implied  or  resulting  trust  is  effectual  to  defeat  or 
prejudice  the  title  of  a  purchaser  for  a  valuable  considera- 
tion, and  without  notice  of  such  trust.  Express  trusts  are 
usually  regulated  by  statute,  and  are  created  for  the  sale  of 
land  for  the  benefit  of  creditors,  legatees,  or  for  the  purpose 
of  satisfying  any  charge  thereon;  for  the  collection  and 
application  of  the  rents  and  profits  of  land;  and  for  the 
beneficial  interests  of  any  person  or  persons,  when  such 
trust  is  fully  expressed  and  clearly  defined  upon  the  face  of 
the  instrument.  Where  the  classes  of  express  trusts  are 
specifically  enumerated    b}^  statute,  the  creation,  for  any 

'  Estates,  in  the  United  States,  ''  Tlie  aliove  statements  are  sub- 
are  essentially  creations  of  the  stantially  true  of  all  the  States 
statute,  preserving  a  general  har-  whose  procedure  is  the  same  as,  or 
mony  in  all  the  States,  but  fre-  similar  to,  the  N.  Y.  Revision,  and 
qiiently  widely  divergent  in  detail.  conveyances  to  use  are  generally 
The  statute  should  always  be  con-  abolished  in  all  the  States:  4  Kent's 
suited  in  construing  them.  Com.  308;  Verdin  v.  Slocum,  71  N. 

'  Leiter  v.  Shejijiard,  85  111.  242.  Y".  315. 

»  Goodel  V.  Hil)bard,  32  ]\Iich.  47; 
Kenyon  v.  See,  94  N.  Y.  5G3. 


TITLE    TO   EEAL   PEOPEETT.  19 

purpose,  of  any  trust  not  so  enumerated  vests  no  estate  in 
the  trustee,  though  if  valid  as  a  power,  the  lands  to  which 
the  trust  relates  remains  in  or  descends  to  the  persons  other- 
wise entitled,  subject  to  the  execution  of  the  trust  as  a 
power.  Ko  particular  form  of  words  is  necessary  to  create 
a  trust,  and  effect  will  always  be  given  to  the  intention  of 
the  parties/ 

§  8.  Powers.  Closely  allied  to  trusts,  and  partaking  some- 
what of  their  nature,  are  powers,  the  creation,  construction 
and  execution  of  which,  are,  in  a  majority  of  the  States,  gov- 
erned by  express  statutory  provisions.  A  power,  as  defined, 
is  an  authority  to  do  some  act  in  relation  to  lands,  or  the  cre- 
ation of  estates  therein,  or  of  charges  thereon,  which  the 
owner  granting  or  reserving  such  power  might  himself  law- 
fully perform,  and  no  person  is  capable,  in  law,  of  granting 
a  power,  who  is  not  at  the  same  thne  capable  of  alienating 
some  interests  in  the  lands  to  which  the  power  relates. 
Powers  are  general  or  special,  and  beneficial  or  in  trust.'  A 
power  is  general  when  it  authorizes  the  alienation  in  fee,  by 
deed,  will,  or  charge  of  the  lands  embraced  in  the  power,  to 
anv  alienee  whatever;  and  is  a  simple  form  of  familiar  occur- 
rence. It  is  special,  when  the  appointee  is  designated;  or 
where  it  authorizes  a  conveyance  of  a  particular  estate  or  in- 
terest less  than  a  fee.  A  general  or  special  power  is  benefi- 
cial, when  no  person  other  than  the  grantee,  has,  by  the  terms 
of  its  creation,  any  interest  in  its  execution.  A  general 
power  is  in  trust,  when  any  person,  other  than  the  grantee, 
is  designated  as  entitled  to  the  proceeds,  or  other  benefits  to 
arise  from  the  alienation  of  tlie  lands.  A  special  power  is 
in  trust,  when  the  disposition  wliicli  it  authorizes  is  limited 
to  be  made  to  any  jwrticular  jhtsoiis  other  than  the  grantee; 
or  wlien  any  class  of  pci-soiis,  other  than  the  grantee,  is 
entitled  to  any  l^enefit  from  thedispositioii  oi-chiii'Lic  miihor- 
ized  by  the  power.     A  i)o\ver  may  be  granted  by  a  suitable 

'  FIhIut  ?'.  Fi<-M.s,  1((  Jolins.  495  jjivcn  is  that  \vhirlli.sno\vp■Il('^ally 
Sayll)r  i'.  l^lairu',  :{1  .Mil.  loH.  ol)scrv<'<l  in  this  coiiiilry,  thc>u;,'h  it 

*Kfnt  Com.    Hl!(;  2   Hou.    Law  (liirci-Msomcwhat  frmii tlKctiMiiiiuu 

D:«'t.  iVJO.     TIk."  (.-huMifkutioM  ahuvo  law  chLssilicatiuii. 


20  ABSTRACTS   OF   TITLE. 

clause  containeJ  in  llu'  convcvaiU'C  of  some  estate  in  tlie 
lands  to  which  same  relates,  or  by  devise  contained  in  a 
last  will  and  testament,  and  may  be  vested  in  any  person 
capable  in  law  of  holding-  lands,  but  cannot  be  executed  by 
any  person  not  capable  of  alienating  lands  holden  by  such 
])erson.  A  power,  technically  speaking,  is  not  an  estate,  but 
is  a  mere  authority,  enabling  a  peison,  through  the  medium 
of  the  statute,  to  dispose  of  an  interest  in  real  property, 
vested  either  in  himself  or  in  another  person,'  and  where  a 
])<)wer  is  executed,  the  pei'son  taking  under  it  takes  under 
liim  who  created  the  power,  and  not  under  him  who  executes 
it.'  A  power  to  sell  land  can  only  be  exercised  in  the 
manner  and  for  the  precise  pui'pose  declared  and  intended 
by  the  donor,  and  when  the  purpose  becomes  wholly  un- 
attainable, the  power  ceases/  In  the  construction  of  powers, 
the  intention  of  the  parties,  if  compatible  with  law,  must 
govern;  and  the  intention  is  to  be  determined  from  the 
instrument  creating  the  jiower." 

§  9.  Homesteads.  The  statutes  of  all  the  States  have 
injected  into  the  law  of  real  property,  as  applied  in  this 
country,  a  new  quality,  unknown  to  the  common  law, 
denominated  "  homesteads."  The  homestead  is  usually  a 
constitutionally  guaranteed  right  annexed  to  land,  whereby 
the  same  is  excm])ted  from  sale  under  execution  for  debt. 
Xo  uniform  rule  can  be  given  for  its  ascertainment,  it  being 
variously  measured  by  a  definite  money  value,  or  a  specific 
a])propriation  of  land.  Nor  can  any  general  definition  of 
its  character  be  given  other  than  the  above,  as  the  authorities 
are  by  no  means  harmonious  in  prescribing  i{s  limits,  or 
defining  its  effect.  In  some  of  the  States  the  homestead  is 
an  estate,^  limited  only  as  to  its  value,  aiid  not  by  any  specific 
degree  of  ink?rest  or  character  of  title  in  the  particular 
property  to  which  it  attaches,  and  when  the  worth  of  property 

'  Burleigh  v.   Clongh,   52  N.  H.  "  Guion  v.  Pickett,   42  Miss.    77; 

268;  2  Prest.  ALstracts,  275.  Jackson  v.  Veeder,  11  Jolms.   169. 

'Legget  V  .  Dorenius,   25  N.   J.  ^  Litt'.ojohn  v.  Egerton,  77  N.  C. 

Eq.  122.  379:  Eldiidge  v.  Pierce,  90  111.  474; 

^Hetzel  V.  Barber,  69  N.  Y.  1.  Jenkins  v,  Volz,  54  Tex.  GU6. 


TITLE    TO    EEAL    rKOPERTr.  21 

does  not  exceed  the  statutory  valuation,  the  estate  embraces 
tlie  entire  title  and  interest  of  the  householder  therein, 
leaving  no  separate  interest  in  him  to  which  liens  can 
attach  or  which  he  can  alien  distinct  from  the  estate  of 
homestead.'  Such  estate  is  also  regarded  as  a  determinable 
fee.'  The  right  of  homestead  in  a  majority  of  the  States, 
liowever,  is  held  to  be  but  a  privilege  of  occupancy  against 
creditors,'  the  continuance  of  which  depends  upon  the  con- 
tinuance of  prescribed  conditions.*  When  once  acquired  it 
is  a  vested  right,'  (though  it  seems  it  may  be  imjiaired  by 
subsecpient  legislation,")  and  can  only  be  lost  by  abandon- 
ment.' The  homestead  law  does  not  vest  in  the  owner  any 
new  rights  of  property  but  simply  imposes  restrictions  on 
the  creditor  in  seeking  satisfaction  for  his  debt,'  and  the 
protection  aiforded  by  it  attaches  to  an  equitable  title  with 
the  same  force  as  to  the  legal  title.'  "Where  tliere  is  an 
abandonment,  with  a  fixed  intention  not  to  return,  the 
homestead  may  be  sul ejected  to  the  demands  of  creditors, 
but  the  question  is  almost  exclusively  one  of  intent,  and 
absence  for  an  indefinite  period  is  not  sutiicient  to  establish 
the  fact  of  an  al)an(l<»nment,  unless  accompanied  with  ])r<)of 
of  intt'nt  not  to  return.'"  In  every  State  s})ecial  restrictions 
liave  been  placed  on  the  alienation  of  the  homestead,  it 
l)cing  in  contemplation  of  law  the  last  retreat  and  shelter  of 
the  family;  and  though  its  sale  is  ]>ermitted.  the  voluntary 
act  of  either  husband  or  wife,  or  both,  would  be  inelfectual 
for  that  purpose,  except  in  the  manner  ])rovided  by  statute," 
and  as  a  rule,  the  alienation  of  homestead  proj)erty  by  the 

'  Morritt  v.  Mirritt,  97  111.  243.  «  Harris  v.  (Jlcnn,  50  C,a.  94. 

»Poer.    Hardic,   05   N.    C.   4-t7;  '  Carr  r.  Risin;,',  02  111.  14;  Crook 

llaslam  V.  Cainpbi'll,  00  (ia.  Ood.  v.  I.unsfonl,  8  K»'i»<irt»'r,  62. 

•  liranie  r.  Craij,',  12  Hush  (Ky.),  "  Bank  r.  (Jri-fh,  78  N.  ('.  247. 

404;  C'asclxjlt  r.  iJoiiahLson,  07  Mo.  'Allen    r.    Ilawley,  00    III.   10|; 

308;    Drake   v.    Kiiiwll,   38   Midi,  Smith  /•.  Clifiiault.  48  T.-x.  4.m. 

232.  "M.Millan   r.  Warner.   3S   T>x. 

«  Hill  ?•.  Franklin,  r,4  Miss.  032.  410;  I'otLs  r.  Davenport.  79  III.  4:m. 

■  I  {a  net   f.  .M.-ssner.  3(»  Tex.  (i(i4;  "  Kie^e    v.  (iarvey.  47  Cal.   371; 

UarliCT  V.  lioarheek,  30    .ML  li.  399.  Haikiiiii  r.  \V...m1,  .'is  .\la.  (M2. 


22  ARSTRACTS   OF    TITLE. 

hiisliand  witliout  consent  of  the  wife  is  an  al)Solutc  nullity, 
and  tlir  ])m'tliaser  acquires  no  title  wbatever.'  AVlien  a 
liarty  derives  title  to  i)i'operty  in  good  faith,  and  in  the  piv- 
scribed  methods,  through  one  who  has  a  homestead  right 
therein,  he  will,  it  seems,  succeed  to  his  grantor's  rights, 
and  take  the  )>i'(>i)ei-ty  exem])t  from  his  grantor's  debts." 

§  10.  Dower  and  Curtesy.  One  of  the  common  law  inci- 
dents of  real  estate  is  dower,  being  that  provision  which  the 
law  makes  for  a  widow  out  of  the  lands  or  tenements  of  her 
deceased  husband,  for  her  support  and  the  nurture  of  her 
children.'  The  common  law  right  of  dower  no  longer 
exists,  however,  in  a  majority  of  the  States,  the  rights  of  the 
survivine:  wife  in  the  real  estate  of  her  deceased  husband 
being  those  created  by  statute  alone,  and  questions  upon 
them  must  be  determined  solely  by  reference  to  the 
statute."  Ko  uniform  measure,  either  as  to  quantity  or 
quality,  has  been  adopted,  but  in  the  main  the  estate  con- 
ferred conforms  to  that  of  the  common  law  and  consists  of 
the  use,  during  her  natural  life,  of  one  third  part  of  all  the 
lands  whereof  her  husband  w^as  seized  of  an  estate  of  inheri- 
tance at  any  time  during  the  marriage. 

During  the  lifetime  of  the  husband,  the  wife  has  only  an 
inchoate  right  which  is  not  an  estate  in  the  land,  but  a  mere 
continirent  interest  that  attaches  to  the  land  as  soon  as  thtra 
is  the  concurrence  of  marriage  and  seizin.  This  interest 
becomes  fixed  and  certain  upon  the  death  of  the  husband, 
and  after  assignment  of  the  dower,  develops  into  a  freehold 
estate  in  land.'  During  the  marriage,  no  act  of  the  husband 
alone  could,  at  common  law,  bar  or  extinguish  this  interest, 
which  in  England  was  accomplished  by  levying  a  fine  or 

» Rogers    v.   Renshaw,   37    Tex.  N.  C.  474;    Leupold  v.   Kruso,  95 

625;  Abell  v.  Latlu-op,  47  Vt.  375;  111.  440. 

Barnett  v.  Mendenhall,  43  Iowa,  ^  2  Black.  Com.  130;  4  Kent  Com. 

29G;  Richards  v.  Green,  73  111.  54;  35. 

Bank  v.  Lyons,  52  Miss.  181;   Mil-  *  Gaylord  v.  Dodge,  31  Ind.  41. 

ler  V.  Marx,  55  Ala.  322.  ^  Elmdorf  v.  Lockwood,  57  N,  Y. 

'Shackelford    v.   Todhunter,    4  323. 
ni.  App.  271;   Adi-ian  v.  Shaw,  82 


TITLE    TO    KEAL    PROrERTY.  iio 

suffering  a  common  recovery.'  In  the  United  States  a 
woman  may  be  barred  of  her  dower  by  jointure,  settled  on 
her  before  marriage,  or  by  joining  with  her  liusband  in  a 
deed  of  conveyance,  properly  acknowledged.'  Before  dower 
has  been  assigned,  it  can  only  be  released  to  the  owner  of 
the  fee,  or  to  some  one  in  privity  with  the  title  by  his  cove- 
nants of  warranty.  But  Avhere  the  former  owner  of  the  fee 
in  land  in  which  dower  rights  still  exist,  has  conve_yed  the 
same  with  warranty,  he  may  purchase  the  right  for  the 
benefit  of  his  grantee,  however  remote,  and  thus  prevent  a 
breach  of  his  covenants.'  The  release  of  dower  which  a 
married  woman  makes  by  joining  with  her  husband  in  a 
conveyance  of  his  land,  operates  against  her  only  by  estop- 
pel, and  can  be  taken  advantage  of,  only  by  those  who 
claim  under  that  conveyance,*  and  if  the  conveyance  is  void, 
or  ceases  to  operate,  she  is  again  clothed  with  the  right 
^vllich  she  had  released. 

During  coverture,  the  wife's  inchoate  right  of  dower  is 
incapable  of  being  transferred  or  released,  except  to  one 
who  has  already  had,  or  by  the  same  instrument  acquires 
an  independent  interest  in  the  estate.'  The  right  is  not  such 
an  estate  as  can  be  leased  or  mortgaged,'  neither  can  a  mar- 
ried woman  bind  herself  personally  by  a  covenant  or  con- 
tract affecting  her  right  of  dower  during  the  marriage. 
Hence,  a  deed  executed  l)y  husl)and  and  wife  with  covenant 
of  warranty,  docs  not  estoj)  tlie  wife  from  setting  up  a  sub- 
sequently acquired  title  to  the  same  ]aii<ls.'  The  inchoate 
right  of  d(^wer  not  l^eing  the  suhject  of  conveyance  in  any 
of  the  usual  forms  l)y  whicli  real  property  is  transferred, 
and  the  doctrine  of  estoppel  b}'  which  suhscMjUciitly  ai(]iiired 

'2   Black.    Coin.    137;    4   Kent's  'Rolunson  v.  JJaU-s,  3  Mrt.    40; 

Com.  .11.  Tompkins  i\  Fomla,  4  rai;;«',  44S. 

*4  Ki-nt  Com.    00;    Elnxlorf   v,  '  C'roade  V.  IiiKTaliain,   l!j  I'iik. 

L<Kkwoo<J.  .07  N.  Y.  a2J.  i! !. 

'  IjJI  FramUjitMi  v.  Crow,    W  111.  '.fackson   v.   \'andt.'rlii')(.K'n,  17 

11)7.  John.s.  107. 

«M:ilI(.n«'yr.  noran.lUN.  Y.  Ill; 
Lockc-tt  V.  .lauK-H,  H  Hnsh  (Ky.),  2»; 
Frencli  f.  Cnj«l)y,  01  Me.  502. 


:2t  ABSTRACTS    OF    TITLE. 

titles  aiv  made  to  inure  to  the  beiielit  of  former  grantees 
beiiiLT  iiiaii|ilical)lc,  it  follows  tiuit  the  grantee  or  mortgagee 
claiming  luulcr  an  insti-ument  executcil  by  a  married  Avoman 
durin"-  covi'rture  actiuires  no  title  or  interest  in  the  dower  of 
the  grantor  or  mortgagor  when  the  estate  becomes  absolute, 
whether  dower  has  been  assigned  or  not.'  IJut  in  all  cases 
where  the  wife  unites  with  her  husband  in  a  conveyance,  \)vo\)- 
erly  executed  li_v  hci',  wliich  iseifectual  and  operative  against 
the  liusband  and  which  is  not  superseded  or  set  aside  as 
against  him  or  his  grantee,  her  right  of  dower  is  forever 
barred  and  extinguished,  for  all  purposes  and  as  to  all  per- 
sons." 

Tenancy  by  the  curtesy  has  been  generally  abolished  and 
the  husband  takes  a  statutor}'^  allowance  from  the  deceased 
wife's  estate,  the  quantity  and  quality  varying  in  the  differ- 
ent States.  Tenancies  in  dower  or  curtesy  stand,  like  all 
other  estates  of  freehold  for  life,  necessarily  sul)jected  to 
the  charges,  duties  and  services  to  which  the  estate  mav  be 
liable,  in  proportion  to  the  interest  therein.* 

§  11.  Easements  and  Servitudes.  An  easement  has 
been  defined  by  Washburn,  as  "  a  right  in  the  owmer  of  one 
parcel  of  land,  by  reason  of  such  ownershi]),  to  use  the  land 
of  another  for  a  special  purpose  not  inconsistent  with  a  gen- 
eral property  in  the  owner."  *  Easements  are  as  various  as  the 
exigencies  of  domestic  convenience  or  the  purposes  to  which 
buildings  and  land  may  bo  ai)plied,''  and  are  created  by  grant, 
confirmation,  reservation  or  prescriptive  user.  The  owner 
in  fee  of  land  may  im})ose  u])on  it  any  burden,  however 
injurious  or  destructive,  not  inconsistent  with  his  general 
right  of  ownership,  if  such  burden  be  not  in  violation  of 
pul)lic  policy  and  docs  not  injuriously  affect  the  rights  or 
property  of  others.'  An  easement  may  be  created,  or 
reserved  by  an  implied  grant,  when  its  existence  is  necessary 

'  Marvin  v.  Smith.  4G  N.  Y.  571;  *  Wash.  Real   Prop.  25;  Meek  v. 

Carson  v.  Murray,  3  Paige,  483.  Breckenridge,  29  Ohio  St.  G42. 

« Ehudorf  v.  Lockwood,  57  N.  Y,  M  Bou.  Law  Diet.  516. 

322.  *  Van  Renssela'r  v.  li.  R.  Co.,  1 

»  Peyton  v.  Jeffries,  50  111.  143.  Hun  (N.  Y.),  507. 


TITLE    TO   REAL    rEOPERTT.  25 

to  the  enjoynieut  of  that  which  is  expressly  granted  or 
reserved,  upon  the  principle  that,  where  one  grants  anything 
to  another,  he  thereby  grants  him  the  means  of  enjoying  it, 
whether  expressed  or  not,'  but  easements  exist  as  appurte- 
nant to  a  grant  of  lands  only  by  reason  of  a  necessity  to  the 
full  enjoyment  of  the  property  granted.'  Kothing  passes 
by  im})lication,  or  as  incident  or  appurtenant,  except  such 
privileges,  rights  and  easements  as  are  directly  necessary 
to  the  proper  enjoyment  of  the  granted  estate,  and  the  ne- 
cessity measures  the  extent  and  duration  of  the  right.  When 
the  necessity  ceases,  the  rights  resulting  from  it  cease.'  It 
must  be  an  actual  and  a  direct  necessity.  A  mere  conven- 
ience is  not  suthcient  to  create  or  convey  a  right  or  ease- 
ment, or  impose  burdens  on  lands,  other  than  those  granted, 
as  incident  to  the  grant.*  Easements  of  necessity,  when  the 
title  to  the  dominant  estate  and  to  the  servient  estate  unite 
in  a  common  owner,  are  merged  and  lost.  On  separate  con- 
veyances of  the  estates  by  the  common  owner,  such  ease- 
ments are  not  revived,  nor  treated  as  having  existed  during 
the  time  the  two  estates  were  in  the  common  owner,  but  are 
re-created  by  the  conveyance  of  the  estate  separately,  and 
arise  from  the  aj)[)lication  of  the  rule  above  stated.'  In 
respect  to  the  acquisition  of  easements  by  user,  no  universal 
rule  of  law  as  to  the  effect  of  evidence  of  particular  facts 
can  be  laid  down,  and  when  established  by  prescription,  <»r 
inferred  from  user,  such  easements  are  limited  to  the  actual 
user.  A  right  claimed  b}''  user  is  only  co-extensive  with  the 
user.*  S})ecial  easements  are  created  by  grant  or  confirma- 
ton,  or  may  be  reserved  by  special  reservation  in  a  coiivcv- 
aiice  of  lands,  and  casements  created  in  this  maimer  do  not 
cea.se,  even  though  thi^  necessity  for  same  may  have  ceased.' 

'  I^inier  v.   Bootli.  50  Miss.   410;  WO;  Ilolnn-s  r.  Sccly.  1!»  Wni.l.  nOT; 

Plu^rrv^i  V.  McDiiirt',  56  N.  II.  :i(»«5:  Wainn  v.  HliiUc,  54  .M.-.  :27tl;  Can-y 

iJillinaii    r.    llofrman.  :5H  Wis.  5r)'J,  r.  K.ic.  12  H<|.(.rt«T,  5L';{. 

»  \V<j<»<Iwortli    V.     HayinotKl.    51  Mlillcr  r.  Laphaiii,  4  I  Vt.  410. 

Conn.  70.  ■■  Itnmks     v.     C"uitisn,     4     Luii.s. 

Mlanrork  v.  W.ntwortli.  5  Mit.  ^\.  Y.)  L'h:{. 

4Ui:  Cun-y  V   Uiic,  ]2  IU-\K  r,rA.  ^  AtlanUi     Mills    v.    Ma.son,    liiO 

'Ofe'dt-n    V.   JiiiningH,  02    N.   V.  Ma.v-'ll. 


2G  ABSTRACTS    OF    TITLK. 

A  liccnsn  is  an  authority  to  enter  upon  the  hinds  of 
another  and  do  a  particuhir  act  or  series  of  acts,  witiiout 
possessing  any  interest  in  the  hind.  A  cl;uin  for  an  t-asa- 
ment  must  be  founded  upon  a  grant,  by  deed  or  \vi-itin<,^  or 
upon  prescription  wliich  })resuj)i)oses  a  grant,  for  it  is  a  i)er- 
manent  interest  in  another's  land ;  but  a  license,  conveying 
no  estate  or  interest,  may  be  by  parol.  It  is  founded  in 
personal  confidence,  is  not  assignable,  and  if  executory  is 
revocable  at  the  pleasure  of  the  grantor.  The  distinction, 
however,  is  quite  subtile,  and  it  becomes  dilficult,  in  many 
cases,  to  discern  a  substantial  difference  between  them.' 

§  12.  Tenancies.  Next  to  a  fee  simjile,  the  most  com- 
mon estate  known  to  our  law  is  an  estate  for  years,  being  a 
right  to,  or  contract  for,  the  possession  and  profits  of  lands 
in  consideration  of  a  recomjiense  called  rent.'  Estates  for 
years,  for  life,  and  at  will  or  by  sufferance,  are  usually  denom- 
inated tenancies,  the  holders  thereof  being  mere  occupants, 
while  the  ultimate  title  remains  in  the  proprietor  of  the 
land.  In  estates  for  years,  both  the  time  as  well  as  tlie 
estate  itself  are  called  a  term.  Such  an  estate  is  not  an  in- 
terest in  the  land  itself,  but  only  of  the  use  and  possession 
of  same  for  a  definite  period,  hence  a  tenant  is  not  said  to 
be  seized  of  the  land,  but  only  possessed  of  the  term.  The 
estate  is  of  frequent  occurrence  in  the  examination  of  titles, 
and  often  rivals  in  dignity  and  importance  the  fee  itself.  It 
is  created  by  an  instrument  called  a  lease,  and  is  terminated 
b}'^  its  OAvn  limitation;  by  forfeiture,  in  consecpience  of  a 
breach  of  some  express  stipulation  or  covenant;  or  Ijy  opera- 
tion of  law  termed  a  merger,  where  tlie  tenant  ])y  any 
means  becomes  seized  of  the  fee  of  the  reversion.  The  ten- 
ancy may  also  be  terminated  by  a  surrender  of  the  lease  to 
the  landlord,  or  where  the  sul)ject-matter  of  tlie  lease  wholly 
perishes.  The  tenant  is  never  permitted,  for  reasons  of  sound 
public  policy,  to  controvert  his  landlord's  title,  or  to  set  up 
against  him  a  title  acquired  by  himself  during  his  tenancy 

'  Muraford  v.  \Miitney,  15  Wend.  *  4  Cruise,  51. 

380;  Thompson  v.  Gregory,  4  Johns. 
81;  3  Kent  Com.  452. 


TITLE    TO    REAL    PKOrERTY.  I  < 

wliicli  is  hostile  in  its  character  to  that  wnich  he  acknowl- 
edged in  accepting  the  demise.' 

§  13,  Color  of  Title.  A  person  is  properly  said  to  have 
color  of  title  to  lands  when  he  has  an  apparent  thongh  not 
a  real  title  to  the  same,  founded  upon  a  deed  which  purports 
to  convey  them  to  him,^  and  a  claim  to  real  property  under 
such  a  conveyance,  hoAVever  inadequate  it  may  be  to  carry 
the  true  title,  or  hoAvever  incompetent  the  grantor  may  be 
to  convey  such  title,  is  strictly  a  claim  under  color  of  title.* 
Possession  under  color  of  title  for  the  period  of  statutory 
limitation,  confers  upon  the  holder  a  perfect  title  in  law, 
raid  where  one  takes  possession  under  a  deed  giving  color  of 
title,  his  possession  maybe  transferred  to  subsecjuent  parties, 
and  the  possession  of  the  dilferent  holders  may  be  united  so 
as  to  make  up  the  statutory  period,  the  operation  being 
technically  called  tacking.'  Titles  acquired  in  this  manner 
must,  however,  show  connected  possession,  and  a  privity  of 
grant  or  descent.  Those  who  hold  lands  independently  of 
previous  holders,  their  several  possessions  having  no  connec- 
tion, can  not  so  tack  their  possession  as  to  avail  themselves 
of  that  which  has  gone  before.' 

§  14.  Evidoneos  of  Title.  There  is,  strictly  speaking, 
but  one  species  of  title  to  lands,  and  that  the  lc<jal  title. 
Individuals  may  possess  equities  of  recognized  potency,  but 
such  equities  after  all  do  not  constitute  title,  although 
they  may  carry  with  them  the  right  to  the  title  and  the 
entire  beneficial  interest.  Courts  of  equity  may  grant  relief 
to  the  holders  of  such  equities,  but  at  law  the  legal  title 
must  always  prevail.* 

A  sale  of  real  property  wlictlirr  judicial  or  voluntary, 
does  not  pass  title,  l)ut  only  gives  a  right  to  a  conveyance  of 
same  accc^rding  to  the  terms  thereof,'  and  the  pun-hasi-r  can 

'  2  Ron.  I^'iw  Dirt.  9.  'Ciisixii    v.    II;inii:i\  ;iii,  TjO    Mo. 

*  SciKnoun-t  r.    Falicy,  27  Minn.  530. 

00;  iJiK'or  V.  Fryo,  02  III.  r,07.  •  Ri^'ricI   v.   nnxl.rick.    i:}    Pit. 

» i:<l;;irt(m  I'.  Bird,   6   Wis.  527;  4:!«:  Imiiii  v.  Holm. •,  21  11. m-.   4H1. 

IlinkUfy  v.  Greonf,  52  111.  223.  '  SL-niplc  v.  Hunk,  0   Ki  iioitcr,  0. 

♦C<j<.iK;r  V.  Ord,  00  .Mo.  420. 


2S  ABSTRACTS    OF    TITLE. 

in.t  1)0  tivalod  as  the  IcLjal  owner  of  tlio  propert}',  until  it 
lias  lu'cii  vostctl  in  him  by  deed,  duly  executed  by  proper 
authority.'  The  evidences  of  legal  title  are  ])reseril)ed  with 
more  or  less  particularity  by  statutory  provisions  in  all  the 
States,  and  consist  of  voluntary  grants  by  the  sovereign,  or 
individual ;  conveyances  resulting  from  judicial  proceedings ; 
regular  descents  in  the  manner  provided  by  law;  or  contin- 
uous possession  which  presupposes  some  one  of  the  other 
three  metluMls. 

§  15.  Alieiuitioii  and  Descent.  Tlic  Constitution  of  the 
United  States  declares  that  Congress  shall  have  power  to 
dispose  of  and  make  all  needful  rules  and  regulations  respect- 
ing the  territory  and  other  property  belonging  to  the  gov- 
ernment, and  under  this  provision  the  sale  of  the  public 
lands  has  been  placed  by  statute  under  the  control  of  the 
Secretary  of  the  Interior.  To  aid  him  in  the  performance 
of  this  duty,  a  bureau  has  been  created,  at  the  head  of  which 
is  the  commissioner  of  the  General  Land  office,  with  many 
subordinates.  To  them,  as  a  special  tribunal.  Congress  has 
conlided  the  execution  of  the  laws  which  regulate  the  dis- 
posal and  general  care  of  these  lauds,  and  has  also  enacted  a 
system  of  laws  by  which  rights  to  these  lands  may  be 
acquired,  and  the  title  of  the  government  convc^'cd  to  the 
citizen."  Congress  has  the  sole  power  to  declare  the  effect 
and  dignity  of  titles  emanating  from  the  United  States,"  and 
the  States  can  not  interfere  with  the  primar}^  disposition  of 
the  soil  by  the  general  government.  Whether  a  title  to  a 
tract  of  public  land  has  passed  from  the  United  States,  is  a 
question  depending  ujjon  statutes  enacted  by  Congress. 
After  title  has  passed,  it  becomes  subject  to  the  laws  of  the 
State  in  which  it  lies,*  and  to  the  laws  of  such  State  recourse 
must  be  had  for  the  rules  which  govern  its  descent,  aliena- 
tion and  transfer,  and  for  the  effect  and  construction  of  its 

'  Page  V.   Rogers,   31   Cal.    291;  ^Bngiiell  r.    Broderick,    13  Pet. 

Smith  V.  Colvin,  17  Bark.  lo7.  (U.  S.)436. 

« United    States  v.   Schurz,    103  "•  "Wilcox  v.  Jackson,  13  Pet.  (TJ. 

Q.  S.  378.  S.)  41)8. 


TITLE    TO    REAL    PROrEKTY.  20 

conveyances.'  All  the  means  by  which  the  title  to  real  prop- 
erty is  transferred,  Avhether  by  deed,  by  will,  or  by  judicial 
proceeding,  are  subject  to,  and  may  be  governed  by,  the 
legislative  will  of  the  State  in  which  it  lies,"  except  where 
such  law  im]x\irs  the  obligation  of  a  contract,  and  all  the 
laws  of  a  State  existing  at  the  time  a  conveyance  or 
contract  is  made,  which  affect  the  rights  of  the  par- 
ties to  the  same,  enter  into  and  become  a  part  of  it."  The 
State  possesses  the  sole  power  to  regulate  the  modes  of  trans- 
fer, and  the  solemnities  Avhicli  accompany  them,  and  title 
can  only  be  acquired,  passed  or  lost  in  accordance  with  such 
regulations,*  tliough  it  w^ould  seem  that  in  the  interpretation 
of  deeds  personal  covenants  can  not  be  implied  if  not  author- 
ized by  the  laws  of  the  State  where  the  deed  was  made," 
while  in  some  States  the  rule  as  above  stated  has  been  so 
modified  by  statute  that  lands  may  be  as  elTectivel}'  con- 
veyed by  conforming  to  the  law  of  the  place  where  the  deed 
is  executed  and  acknowledged.'  In  such  case  proof  of  such 
conformity  should  accompany  the  conveyance. 

1  McGoon  V.  Scales,  9  Wall.  (U.  S.)  «  Brine  v.  Ins.  Co. ,  96  U.  S.  627. 

23;    Clark  v.   Graham,   6  Wheat.  Bronson  v.  Kinzie,  1  How.  311. 
577;    McCormick   v.   Sullivant,  10  ■•  Story's  Conf.  Laws,  708. 

Wheat.  (U.  S.)  192.  «  Bethel  r.  Bothel,  54  Ind.  428. 

'  Osbom    V.    Adams,    18    Pick.  *  Hoadley  v,   Stephens,  4   Neb. 

(Mass.j  245.  431. 


CHAPTER  TIL 

TITLE  BY  DESCENT. 

§  1.  Nature  of  the  title.  §  5.  Adoption. 

2.  Rules  of  doseent.  6.  Proof  of  heirship, 

3.  Consanguinity.  7.  Proof  of  death. 

4.  Affinity.  8.  Conveyances  by  heirs. 

§  1.  Nature  of  the  Title.  Descent,  or  hereditary  suc- 
cession, is  the  title  whereby  one  person,  upon  the  death  of 
another,  succeeds  to  or  acquires  the  estate  of  the  latter  as 
heir  at  law,  the  estate  so  derived  being  called  an  inherit- 
ance.' Though  of  universal  observance,  inheritance  is  not 
a  natural  right,  but  purely  statutory,  and  therefore  arbi- 
trary, absolute  and  unconditional."  An  heir  at  law  is  the  only 
person  who,  by  tlie  common  law,  becomes  the  owner  of  land 
without  his  own  agency  or  assent,  the  law  casting  the  title 
upon  him  without  regard  to  his  AAashes  or  election,^  and 
when  the  right  of  inheritance  is  fully  established  by  strict 
compliance  with  the  law  relating  to  descents,  proof  of  heir- 
ship, etc.,  the  title  thus  conferred  is  of  the  highest  dignity 
and  effectual  for  all  purposes.  In  the  absence  of  proljate 
proceedings  or  a  judicial  determination  of  the  riglits  of  the 
heirs,  titles  depending  on  descent  are  to  be  viewed  with 
jealousy  and  accepted  with  the  greatest  caution,  and  partic- 
ularly is  this  the  case  where  title  is  asserted  by  descent,  by 
an  heir  in  a  remote  degree  from  the  intestate,  or  common 
ancestor.  The  title  to  the  land  of  an  intestate  vests  im- 
mediately in   the   heir  who   holds   same   in  his  own  right, 

'2  Black.  Com.  201;  4  Kent  Com.  ^  3  ^Vash.  Real   Prop.  6:   Wms. 

»374.  Real  Prop.  75. 

'Tyler  v.   Reynolds,   53     Iowa, 
146. 

(30) 


TITLE    BY    DESCENT.  31 

but  charged  Avith  the  payment  of  the  ancestors  debts,' 
and  until  after  administration  the  estate  is  defeasible 
and  liable  to  be  defeated  by  a  sale  made  in  due  course  of 
administration,  becoming  absolute  only  after  the  debts  are 
extinguished."  The  heirs  are  said  to  take  po' capita  or  jter 
stii'pts,  that  is  direct,  or  in  their  own  right,  they  standing 
in  equal  degree,  and  receiving  equal  shares;  or,  by  right  of 
representation,  where  the  descendants  of  a  deceased  heir 
take  the  same  share  or  right  in  the  estate  of  another  person 
that  their  ancestor  would  have  taken  if  living.  Posthu- 
mous children  are  considered  as  living  at  the  death  of  their 
parents  and  participate  as  such.^  Inheritance  only  accrues 
to  the  issue  of  lawful  wedlock,  but  all  the  presumptions  of 
law  are  in  favor  of  legitimate  birth,^  and  an  illegitimate 
child  is  in  all  cases  considered  as  the  heir  of  his  mother.' 
The  descent  of  real  property  and  the  order  of  successi«^n  is 
governed  by  special  statutes  known  as  the  "rules  of  descent," 
and  which  vary  in  every  State. 

§  2.  Rules  of  Descent.  "The English  law  of  descent" 
says  Chancellor  Kent,"  "  is  governed  by  a  number  of  rules,  or 
canons  of  inheritance,  which  have  been  established  f(^r  ages, 
and  have  regulated  the  transmission  of  the  estate  from  the 
ancestor  to  the  heir,  in  so  clear  and  decided  a  manner,  as  to 
preclude  all  uncertainty  as  to  the  course  which  the  descent 
is  to  take.  But  in  the  United  States,  the  English  common 
law  of  descents,  in  its  most  essential  features,  has  been  uni- 
vci-sally  rejected,  and  each  State  has  established  a  law  of 
descent  for  itself."  The  laws  of  the  individual  States,  while 
preserving  a  general  agreement  in  their  great  outlines,  yet 
dilfer  materially  in  detail,  and  it  is  doubtful  if  any  two  of 
them  are  exactly  alike,  a  circumstance  that  has  induced  a 
distinguished  writer  on  this  sul»ject  to  say,  that."  this  nation 

'  Wulbri.l;,'*!  v.  Day,  31  111.  :!T'.);  *  Fo.v  v.  Burke,  31  Minn.  :!1!). 

ChiiM)  V.  Joluiwm,  11  Tex.  4m.  '  Miili-r   v.  WilliuiiiH,   (Ui   111.   92. 

*  VjinHyclo  V.  Hicliiinb*<»n,   13  111.  Tliin  niatltT  is  Ktutiitory. 
171 :  Wilwjn  r. VVilHon,  13  Harb.  252.  •  4  Kont  Cum.  *374. 

*  1   K<nt   Corn.    412;  Monuw  v. 
Scott,  7  G:i.  fj:].-}. 


32  Al'.STUACTS    OF    TIII.K. 

may  ho  said  to  have  no  general  hwv  of  descents,  "wliieli  ])i'()l)- 
al)ly  lias  not  fallen  to  the  lot  of  any  other  civilized  coun- 
try." '  No  attenijjt  will  be  here  made  to  summarize  or  ex- 
j)laiu  the  regulations  of  descent  in  the  various  States,  but  in 
the  course  of  his  investigations,  the  examiner  will  frequently 
have  to  refer  to  them  for  assistance  in  unraveling  kiu)tty 
points  or  snarls  in  the  tangled  skein  of  title. 

The  transmission  of  property  by  hereditary  descent,  from 
the  parent  to  his  children,  is  the  dictate  of  the  natural  affec- 
tions, and  forms  the  first  rule  of  inheritance  in  every  State, 
varied  in  some  cases,  however,  by  the  erjual  ])articipation  of 
the  widow.  From  this  point  there  is  no  uniformity,  but,  as 
a  rule,  the  lineal  kindred  take  in  ])reference  to  the  collateral. 
If  the  descendants  all  stand  in  tlic  same  degree  of  consan- 
guinity they  take  e(jually,  otherwise  by  right  of  representa- 
tion, and  if  there  be  no  heirs,  the  property  escheats  to  the 
State.  The  degrees  of  kindred  are  ordinarily  computed  in 
the  United  States,  according  to  the  rules  of  the  civil  law; 
and  the  kindred  of  the  half-blood  inherit  equally  with  those 
of  the  whole  blood,  in  the  same  degree,  unless  the  inherit- 
ance be  ancestral,  in  ■which  case  those  who  are  not  of  the 
blood  of  such  ancestor  are  excluded.  The  last  mentioned 
rule  has  been  enacted  substantially  in  all  the  States,  but  is 
held  to  refer  to  the  immediate  and  not  to  the  remote 
ancestor.' 

§  3.  Consanguinity.  The  relation  subsisting  among  all 
the  different  persons  descending  from  the  same  stock  or  com- 
mon ancestor,  is  called  consanguinity,  and  is  the  medium 
through  which,  in  the  descent  of  real  property,  the  several 
degrees  of  kindred  are  computed  and  deduced.  Consanguin- 
ity is  lineal  or  collateral;  the  former  being  the  relation  which 
exists  among  persons  where  one  is  descended  from  the  other 
as  betw^een  father  and  son,  in  the  direct  line  of  descent;  the 
latter  is  the  relation  subsisting  between  persons  descended 
from  the  common  ancestor,  but  not  from  each  other,  as 
bctwe3n   brother    and    sister.     There  are  two    methods  of 

'  Reeve  on  Descent,  pref.  Oliio,  36;  Larder  r.  Collins,  2  Pet. 

"Buckingham  v.  Jacques,  87  58;  Cramer's  Appeal,  43  Wis.  167; 
Conn.    402;  Curren  v.   Taylor,    19      Ryan  v.  Andrews,  21  Mich.  229. 


TITLE    BY   DESCENT.  33 

computing  the  degrees  of  consanguinity,  known  respectively 
as  the  cIat^I,  and  common  hiw  methods,  the  latter  being  also 
the  same  as  the  canon  law.  The  rule  of  the  civil  law 
is  generally  used  in  this  country,  and  is  preferable  for  that  it 
points  out  the  actual  degree  of  kindred  in  all  cases.  This 
mode  of  com]nitation  begins  with  the  intestate,  and  ascends 
from  him  to  the  common  ancestor,  and  descends  from  such 
ancestor  to  the  next  heir,  reckoning  a  degree  for  each  per- 
son, both  ascending  and  descending,  and  the  degrees  they 
stand  from  each  other  is  the  degree  in  which  they  stand 
related.  According  to  this  rule  of  computation  it  will  be 
seen,  the  father  of  the  intestate  stands  in  the  first  decree, 
his  brother  in  the  second,  his  nephew  in  the  third,  etc.  By 
the  common  law  method  of  computation,  different  relations 
may  stand  in  the  same  degree,  and  the  degrees  are  counted 
the  same  whether  lineal  or  collateral.  The  mode  of  the 
conimon  and  canon  law  is  to  discover  the  common  ancestor, 
and  beginning  with  him  to  reckon  downwards,  and  the  degree 
the  two  pereons,  or  the  more  remote  of  them,  is  distant  from 
the  ancestor,  is  the  degree  of  kindred  subsisting  between 
them.'  By  this  means  the  father  and  brother  of  the  intes- 
tate, or  ]ierson  proposed,  stand  in  the  same  degree.  By  the 
civil  law  the  father  stands  in  tlie  lirst  degree,  the  brotlier  in 
the  second.  So  by  the  common  law  the  first  cousin  stands 
in  the  second  degree;  by  the  civil  laAV  he  would  stand  in  the 
ff^urtli.  The  line  of  ancestry  is  classed  as  ascending  or  de- 
cending,  taking  the  person  proposed  as  the  unit,  and  is  fur- 
ther classified  as  paternal  or  maternal,  according  as  the 
exaininati(jn  may  lead  thnjugli  the  father  or  the  mother. 
In  P^n^dand,  a  fair  al)ility  to  trace  genealogy  is  an  indispen- 
sal)le  i(j(|nisite  of  the  examiner,  as,  owing  to  the  non-])robate 
of  real  estate  wills  until  very  rec<Mit  years,  a  pedigree  always 
accompanied  an  abstract  showing  a  descent.  The  matter  is  of 
niijch  less  inipoi-tance  in  the  United  States.  As  an  illus- 
tration of  the  subJL'ct  under  discussion,  a  diagram  of  the 
degrees  of  consanguinity,  according  to  the  civil  law,  is  given 
on  the  succeeding  l)agc. 

'1  U..U.  I.1W  Diet.  327;  2  Hl.ifk.  CVjiii.  1203. 

a 


34  ABSTRACTS   OF    TITLE. 

DEGREES   OF    CONSANGUINITY   ACCORDING    TO    THE    CIVIL   LAW. 


IV. 
Gt.Gl. Grand- 
fat  her. 


IIL 

Great 
Grandfather. 


IL 

Grandfather. 


I. 
Father. 


o. 

Intestate. 


I. 

Son. 


IL 

Grandson. 


V. 
Great- 
grand  uncle. 

\ 

IV. 

Great-nncle. 

\ 

III. 
Uncle. 

\ 

IL 

Brother. 

V. 

Great-uncle's 

Son. 

\ 

IV. 
Cousin-ger- 

vian. 

VL 

2d  Cousin. 

IIL 

KepheiD. 

V. 

I  St  Cousin's 

Son. 

\ 

IV. 

Xephew's 
Son. 

III. 

Great- 

gnin^hon. 


TITLE    BY    DESCENT.  35 

§  i.  AOiiity.  The  relatiousliip  or  connection  carising  in 
consequence  of  marriage,  which  exists  between  each  of  the 
married  persons  and  their  kindred,  is  termed  atRnity,  and  is 
distinguished  from  consanguiuit}"  which  is  used  to  denote  the 
ties  of  blood.'  At  common  law  the  relationship  of  affinity 
is  not  sufficient  to  obtain  legal  succession  or  inheritance,  but 
]jy  statute  the  surviving  husbaml  or  wife  has  been  endowed 
with  inheritable  qualities  and  may  take  as  heirs  of  each 
other  according  to  the  prescribed  rules  of  descent,  and  in 
the  sense  that  an  heir  at  law  is  simply  one  who  succeeds  to 
the  estate  of  a  deceased  person,  the  wife  is  an  heir  of  her 
deceased  husband." 

§  5.  Adoption.  Adoption  is  a  juridical  act  creating  be- 
tween two  persons  certain  relations,  purely  civil,  of  pator- 
nity  and  filiation,'  The  legal  ado})tion  by  one  person  of  the 
ofT-spring  of  another,  giving  him  the  status  of  a  child  and 
heir  of  the  parent  by  adoption,  was  unknown  to  the  com- 
mon law,  although  long  recognized  by  the  civil,  and  is  of 
comparative  recent  date  in  the  United  States.  The  act  of 
adoption  is  the  creation  of  an  artificial  relation,  made  in 
conformity  with  and  regulated  by  positive  statute  and  in  tlic 
light  of  which  the  new  riglits  and  obligations  thus  derived, 
are  to  be  solely  construed.*  There  is  a  lack  of  uniformity 
in  the  statutes  enacted  by  the  States,  but  which  in  the  main 
agree  in  conferring  on  the  person  so  adopted  the  rights  of 
inheritance  and  succession,  and  other  legal  consequences  and 
incidents  of  the  natural  relation  of  parent  and  chiUl,  tlio 
same  as  if  such  cliild  had  been  born  in  lawful  wedk)ck  of 
such  i)arent  by  adoption,  but,  as  a  rule,  restrict  such  child 
fiuin  takingproi)erty  expressly  limited  to  the  body  or  bodies 
of  tlie  p;ir(Mits  by  adoption,  and  in  some  instances  from  tak- 
ing from  tiie  lineal  or  collat-.M-al  kindred  of  the  i)arents  l)y 
right  of  representation.  The  right  of  inhcutance  thus  se- 
curca  is  restricted  further  to  tlie  a(h>i>tcd   ))arent  and  })re- 

'  1  Ron.  I^iw  Di<t.  07.  *  1  Hon.  L:nv  Diet.  90. 

'M.  KiiiM.-y  V.   SU-wart,  r,   K.m.  «  K.-..-;in  v.  (J.-iaKlity.  101  III. '3(5; 

.".HI;  St4.-el  u,    KurU,    'M    Uliiu   St.  I/.iik  r.  H.-witt,  I  llowji,  ac:!; 'I'vlrr 

1\)2.  V.  K<yaol<l«,  :i;]  lowu,  110. 


3G  ABSTIJACTS    OF   TITLE. 

cludos  an  inheritance  from  the  actual  children  of  such 
ailoj)ted  ])arent,'  while  the  right  of  inheritance  by  the  adop- 
tive parents  from  tlio  child  is  continetl  to  such  ])ropoi't}'  as 
lie  had  receiveil  through  them,  and,  as  a  rule,  tiic}'  ure 
ex])i-ess] y  prohibited  from  inheriting  any  ])roperty  which  the 
chiUl  received  from  his  own  kindred  by  blood. ^  As  against 
the  ado})ted  child,  the  statute  should  be  strictly  construed, 
being  in  derogation  of  the  general  law  of  inheritance,  which 
is  founded  on  natural  i-elationship,  and  is  a  rule  of  succession 
according  to  nature,  which  has  prevailed  from  time  immemo- 
rial. It  will  thus  be  seen  how  im portant  a  succession  through 
ado})tiou  may  become  in  the  determination  of  land  titles, 
and  the  strictness  necessary  on  the  part  of  examiner  and 
counsel  in  the  investigation  of  questions  of  this  nature. 
"Where  title  is  claimed  through  a  descent  by  adoption,  a  gen- 
eral summary  of  the  proceedings  creating  the  relation  should 
appear  and  the  full  and  perfect  title  of  the  adoptive  heir 
should  be  deducible  of  record  and  in  strict  conformity  to  the 
statute.  The  rights  of  inheritance  acquired  by  an  adopted 
child  under  the  laws  of  a  particular  State  are  recognized  and 
upheld  in  every  other  State,  so  far  as  they  are  not  inconsist- 
ent Avith  its  own  laws  and  policy,'  but  in  the  aljsence  of  stat- 
utory directions,  the  o-eneral rules  of  descent  must  oovern  as 
in  other  cases." 

§  G.  Proof  of  Heirship.  Tliough  the  title  vests  in  the 
heir  by  operation  of  law  immediately  on  the  death  of  the 
ancestor,  yet  purchasers  desire,  and  should  have,  affirmative 
evidence  that  the  person  asserting  same  is  justified  in  so 
doing,  and  this  is  furnished  by  the  proceedings  of  the  pro- 
bate court.  In  all  abstracts  the  interval  of  title  between  the 
deed  by  Avhich  the  decedent  became  seized  and  that  M-hich 
purports  to  be  a  conveyance  by  the  heirs,  should  be  filled 

'Barnliizel  v.   Ferrell,    47  Ind.  » Ross  r.  Ross,  129  Mass.  243. 

335;  Keegan  r.  Geraghty,    101  111.  ^  Reinders  r.  Kaijpelmann,  08  Mo. 

26.  483. 

''Keegan  v.  Geraghty,  101  111.  20; 
see.  also.  Reinders  v.  Kappeluiann, 
68  Mo.  483. 


TITLE    BY    DESCENT.  37 

by  a  summary  or  abridgment  of  the  proceedings  in  probate, 
sho\Wng  the  death  of  the  intestate,  proof  of  heirship  by 
those  asserting  title,  and  a  satisfactory  settlement  of  the 
estate,  for  until  all  this  has  been  accomplished  the  title  of 
the  heirs  is  liable  to  be  defeated  by  a  sale  by  the  adminis- 
trator, as  will  also  the  title  of  one  purchasing  from  them.' 
This  is  a  necessary  result  of  the  rule  of  law,  that  the  intes- 
tate's propert}'  is  primaril}^  holden  for  the  pa3^ment  of  his 
debts,  and  may  be  sold  by  his  administrator  for  that  pur- 
pose.    Such  a  sale  necessarily  dPfeatsall  testamentary  titles. 

§  7.  Proof  of  Death.  The  recitals  of  the  jurisdictional 
facts,  necessary  to  confer  jurisdiction,  in  the  decrees  and 
judgments  of  courts  of  exclusive  though  of  limited  jurisdic- 
tion, are  ^>/'/?//rt /'«<?/<?  evidence  of  the  facts  recited.  Upon 
this  principle  it  has  been  repeatedly  declared  that  the  grant 
of  letters  testamentary  or  administration  is,  in  general, 
prima  facie  evidence  of  the  death  of  the  testator  or  intes- 
tate," and  in  support  of  titles  claipicd  Ijy  descent  is  of  the 
highest  character  of  evidence  of  title  in  the  heir. 

§  8.  Coiive.va!iees  by  Heirs.  Few  titles  are  to  be  ac- 
cepted with  greater  caution,  than  those  asrerted,  and  pur- 
ported to  be  conveyed  by  persons  claiming  to  be  the  heirs 
at  law  of  the  person  last  seized,  in  the  absence  of  full  com- 
pliance with  prescribed  regulations  concerning  the  descent 
and  distribution  of  intestate  estates.  Too  frequently  from 
various  motives,  no  probate  is  ever  had,  and  the  children  of 
the  decedent  unite  to  convey  their  interests  describing  them- 
selves in  such  conveyance  as  "  the  cliildren  and  heirs  at  law  " 
of  such  decedent.  In  England,  a  pedigree  wouhl  accompany 
a  conveyance  of  this  character,  fixing,  by  reference  to  tlie 
ruh's  of  descent,  the  nature  and  extent  of  the  interest  owned 
Itv  f*acli  licir.  In  the  Unite<l  States,  the  jiaucity  of  family 
records  an<l  the  method  of  compiling  same,  would  ivndcr  a 
pt.'digree  of  little  value,  even  were  they  in  use,  and  the  ex- 
aiiiiiiin'T  foiinscl,  if  (l(tiii)ls  nrisc,  ustiallv  I'csorts  t«»  tin-  imtrr 

'  Hill  r.  Tn-at.  07  Me.  5(11.  nii7;  W.ldi  v.  li.  H.  ('<...  r,:j  N.    Y. 

'  roMistock  r.  Crawfonl.  :5  Wall.  OlO;  Jtin-i-M  r.  iJailfliir.  lU  N.  II. 
•AM):  i;.|.|.ii  J-.    M. .  l..r.    17    N.    V.       212. 


38  ABSTRACTS    OF   TITLE. 

doubtful  alternative  of  an  ailidavit  to  ])i'ovc  the  fact  of  heir 
ship  and  bolster  up  the  title,  the  affida\at  in  a  majority  of 
instances  being  entitled  to  less  credence  than  the  deed  it 
su]>plements.  A  title  resting  on  no  better  foundation  than 
a  deed  of  this  character,  unless  re-enforced  by  the  statute  of 
limitations,  is  entitled  to  little  consideration,  and  is  liable  to 
be  defeated  at  any  time  before  the  bar  of  the  statute  has  in- 
terposed. Nor  can  the  purchaser  know,  unless  personally 
cognizant  of  the  facts,  that  all  the  heirs  have  united  in  the 
conve^'ance,  or  that  they  are  qualified  to  convey;  or  that  a 
^\idow's  dower  may  not  greatly  depreciate  the  value  of  the 
property  thus  acquired.  In  this  country  where  all  the  heirs 
are  allowed  an  equal  representation,  partition  is  frequently 
made  by  the  heirs  between  themselves,  without  the  inter- 
position of  a  court,  and  while  such  partitions  are  regarded 
as  valid,  yet  when  made  of  an  unprobatcd  estate,  confusion 
and  uncertainty  are  greatly  augmented,  and  purchasers 
should  decline  the  title  thus  derived  as  affording  no  measure 
of  safety.  "Where  affidavits  are  resorted  toto})rove  heirship, 
death  of  ancestor,  etc.,  they  should  be  well  authenticated 
as  Avell  as  positive  in  their  averments;  but  however  well 
framed  they  may  be,  they  afford  evidence  of  the  lowest 
order  only. 


CHAPTER  lY. 


TITLE    BY   PUKCHASE. 


§1. 

Nature  of  the  title. 

§  12. 

Riparian  titles. 

2. 

Deed. 

13. 

Dedication. 

3. 

Devise. 

14. 

Confirmation. 

4. 

Public  grant. 

15. 

Occupancy. 

5. 

Estoppel. 

16. 

Abandonment. 

6. 

Teclmical  estoppel. 

17. 

Eminent  domain. 

7. 

Equitable  estoppel. 

18. 

Title  acquii-ed  by  eminent 

8. 

Relation. 

domain. 

9. 

Prescription  and  limitation. 

19. 

Escheat. 

10. 

Accretion  and  reliction. 

20. 

Confiscation. 

11. 

Avulsion. 

21. 

Forfeiture. 

§  1.  Nature  of  tlie  Title.  Purchase  is  a  generic  term 
which  includes  every  mode  of  coming  to  an  estate,  except  by 
inheritance,  though  in  its  more  limited  sense  it  is  a]iplied 
only  to  the  acquisition  of  lands  by  way  of  bargain  and  sale 
for  money  or  other  consideration.  Neither  law  writers  nor 
courts  seem  to  have  ventured  on  a  more  extended  definition, 
if  indeed  one  can  be  framed,  and  the  one  above  given  has 
come  down  unclianged  from  Blackstone,  who  in  turn  bor- 
rowed it  from  earlier  writers.  There  are  four  princij^al 
methods  recognized  of  acquiring  title  by  purchase,  to  wit: 
by  deed,  devise,  ])rescription  or  limitation  and  esclieat.  To 
these  may  be  added  title  accruing  through  operations  of 
nature;  as  accretion,  reliction  and  avulsion,  as  well  as  such 
{IS  result  fr<»m  our  political  and  civil  relations;  as  eminent 
domain,  confiscation  and  forfeiture.  Some  writers  still  far- 
ther ext(;nd  the  list  Ity  tlie  addition  of  abandonment,  occu- 
pancy and  estoj)pel.  Th(;  two  foiMiicr  of  these  are  not  known 
in  the  United  States,  while  the  laltn-  is  not,  strictly  speak- 
ing, a  method  (»f  ac(piiring  title  at  all,  but  sinqily  a  recogni- 
tion of  existing  titles. 

(39) 


40  ABSTRACTS    OF   TITLE. 

§2.  Peod.  Title  by  (le(?(l  is  tlie  most  common  foi-iii  of 
])urcliase,  aiul  that  by  Avliicli  the  great  bulk  of  all  the  ival 
j)roperty  in  the  country  is  directly  held.  The  term  deed  is 
very  com[)rehensive  in  its  signilication,  and  denotes  not  only 
all  classes  of  instruments  for  the  conveyance  of  real  estate, 
but  any  instrument  in  writing-  under  seal,  whether  relating 
to  land  or  any  other  matter.  In  its  popular  acceptation, 
however,  it  is  confined  to  conveyances  of  land,  or  estates  or 
interests  therein,  and  is  still  further  restricted  in  its  meaning 
to  absolute  sales,  as  distinguished  from  mortgages,  indicat- 
ing conditional  sales,  though  the  latter  are  as  essentially 
deeds  as  the  former.  In  its  broad  signification  it  is  the 
highest  form  of  exi)rcssion  of  title  known  to  the  law. 

§3.  Devise.  Next  to  deeds,  testamentary  conveyances 
form  the  most  common  vehicle  for  the  transfer  of  inter- 
ests or  estates  in  land,  the  instrument  for  affecting  a  2^ost 
mortem  transfer  being  called  a  will;  the  subject-matter 
as  well  as  the  title  by  which  same  is  acquired,  a  devise;  and 
the  recipient  of  the  testators  bounty,  a  devisee.  A  will, 
which  is  effective  as  a  conveyance  only  after  the  maker's 
death,  is  from  its  own  nature  ambulatory  and  revocable 
during  his  life,  and  it  is  this  ambulatory  quality  which  forms 
the  chief  characteristic  of  Avills;  for  though  a  disposition  by 
deed  may  postpone  the  possession  or  enjojonent,  or  even  tlie 
vesting  of  an  estate  until  the  death  of  the  disjiosing  party, 
yet  the  postponement  in  such  case  is  produced  by  exj)ress 
terms  and  does  not  result  from  the  nature  of  the  instrument.* 
Title  by  devise  is  of  the  highest  dignity,  and  effective  for  all 
purposes,  yet  may  be  defeated  in  the  same  manner  as  a  title 
by  descent,  when  in  the  course  of  administration  it  becomes 
necessary  to  sell  the  testator's  real  estate  for  the  pa}'ment  of 
his  debts. 

§  4.  Public  Grant.  Though  technically  deeds,  public 
grants,  as  forming  the  foundation  of  title  are  usually  classed 
separately  from  them,  and  form  a  recognized  subdivision  in 
all  works  treating  of  titles  or  estates.     The  original  divesture 

'  McDaniel  v.  Jolins,  45  Miss.  633. 


TITLE    BY    PURCHASE.  41 

of  title  by  the  government  may  be  effected  in  a  yariety  of 
ways,  either  of  which  Avill  be  sutlicient  for  the  purpose 
intended.  The  usual  method  is  by  ])atent  issued  in  conlonu- 
ity  to  prescribed  legal  formalities,  though  government  may 
make  a  grant  by  a  law  as  etiectually  as  by  a  i)atent  issued 
in  pursuance  of  a  law;'  and  a  contirmation  by  law  of  a 
claim  of  title  in  public  lands  is  to  all  intents  and  jnirposes  a 
grant  of  such  lands.'  The  original  grant,  whatever  may  be 
its  form,  is  the  first  link  in  the  chain  of  title,  and  whenever 
],raetical)le  should  constitute  the  initial  of  the  abstract,  as 
the  basis  upon  which  all  after-acquired  titles  and  interests 
rest. 

§  5.  Estoppel.  Title  by  estoppel,  as  defined  by  Wasli- 
buru,  "  is  where  equity,  and  in  some  cases  the  hiw,  in  order 
to  accomjilish  the  purposes  of  justice  which  can  not  be  other- 
wise reached,  draws  certain  conclusions  from  the  acts  of  one 
jiarty  in  favor  of  another,  in  respect  to  the  ownership  of 
lauds,  which  it  does  not  allow  the  first  to  controvert  or 
deny."  *  Strictly  speaking,  a  title  is  rather  presumed  than 
acquired  by  estoppel,  which  can  not  operate  to  divest  or 
transfer  an  estate,  and  the  parties  are  precluded  hv  former 
acts  from  asserting  anything  to  the  detriment  of  the  title. 
Estoppels  are  not  favored  in  law,  for  the  object  of  the  ad- 
ministration of  justice  is  to  discover  and  apply  tlie  truth; 
but  there  are  cases  in  which  the  courts  are  bound  to  say  to 
a  litigant  that  he  has  to  his  own  advantage,  or  to  the  injury 
of  his  adversary,  asserted  that  which  is  false,  and  that,  hav- 
ing done  so,  he  must  be  forever  forbidden  to  ui^.fold  for  liis 
own  benefit  the  truth  of  the  matter.*  Mutuality  is  an 
essential  ingredient  of  esto[)i)els,  and  it  folhjws  from  tlie 
very  princi))le  on  which  the  whole  doctrine  rests,  that  they 
ojM.'rate  nfithcr  in  favor  of  nor  against  strangers,  but  albrt 
only  th(!  parties,  and  their  jn-ivics  in  l)h)0(l,  estate,  oi-  in  law. 
A  third   i)arty  derives   no  a  Ivanlage  from,  nor  e.in    he   ho 

'  Hall  V.  Jarvirt.  65  111.  :{<>2;  Stni-  a;}  Wnsli.  Hral  TV..p.  (  III.  K.l.)  70 

tl.<r  V.  LuniH,  12  Tot.  411;  .Mayo  v.  «  Alibut  r    WilUr,  2:.'  La.   .\im. 

Lil.i)y.  12  .Mjlsh.  '.VMi.  yoy. 

•Ciiallfiouv  c.  lJu<liar;iic,  1  \Vi.s. 


42  ABSTUACTS    OF    TITLE. 

bouiul  1)V  an  estoppel,  and  this  rule  ap{)lies  equally  whether 
the  estoj)pel  arises  by  record,  deed,  or  matter  in  pais. ^  Es- 
tojipels  are  classified,  accordino;  to  their  nature,  as  technical, 
or  by  record  or  deed,  and  equitable,  or  in  jxJ'is.  Courts  at 
the  present  day  incline  to  restrict  the  doctrine  of  technical 
estoppel,  and  to  favor  and  extend  ecjuitablc  esto])i)ol.'' 

§  6.  Technical  Estoppel.  The  estoppel  arising  from 
deeds  and  records  is  that  which  directly  concerns  an-  exam- 
iner of  titles,  and  is  really  the  only  question  of  this  nature 
on  -which  he  can  be  called  to  pass.  Matters  in  pais  from 
their  nature  are  not  presented  to  him,  nor  are  they  effective 
in  questions  of  title  until  presented  for  determination  to 
some  competent  tribunal,  when  they  become  matters  of 
record  and  operative,  if  at  all,  as  technical  estoppel.  Estoppel 
by  record  is  based  upon  the  rulings  and  determinations  of 
the  courts,  and  proceedings  had  therein,  which  are  con- 
sidered at  length  in  other  portions  of  the  Avork.  A^erdicts 
and  judgments  are  conclusive  by  way  of  estoppel,  only  as 
to  facts  without  the  proof  or  admission  of  which  tlicy  could 
not  have  been  rendered,^  or  of  matters  material  to  the 
decision  of  the  cause,  and  Avhich  the  parties  might  have  had 
decided,  although  not  actually  litigated,'  but  not  as  to 
facts  not  essential  to,  although  consistent  with  the  general 
verdict  or  decree  entered  thereon.'*  The  estoppel  of  a 
judgment  extends  only  to  tlie  question  directly  involved 
in  the  issue,  not  to  any  incidental  or  collateral  matters, 
although  they  may  have  arisen  and  been  passed  on," 
and  is  effective  only  as  between  the  original  parties 
thereto  or  their  privies.'  It  must  equally  estop  both 
parties  thereto,  or  it  can   not  l)e  set  up  by  either,'  and 

'Chope  V.  Lorman,  20Mich.  327;  "Biirlen  r.   Shannon,   99  M;  ss. 

Simpson  v.  Pearson,  31  Ind.  1;  Mc-  200. 

Donald   v.  Gregory.  41    Iowa,  51-3.  « Lewis' Appeal,  67  Penn.  St.  103; 

'State  r.  Pepper,  31  Ind.  76.  Dixon  v.   MeiTitt,   21  Minn.    196; 

«Burlen  v.    Shannon,   99  Mass.  Providence  r.  Adams,  11  R.  I.  190. 

200.  '  McDonald  v.  Gregory,  41  Iowa, 

■•Lindsloy  v.  Thompson,  1  Terin.  513. 

Ch.    272;  Buck  v.  Collins,  69  Me.  « Stoddard  v.  Burton,  41   Iowa, 

445.  582. 


TITLE    BY    rUKCUASE.  43 

is  not  available  either  for  or  against  a  stranger,'  The  ro- 
vers:il  of  a  judgment  destroys  its  efficacy  as  an  estoppel.' 
Estoppel  by  deed  arises  from  the  provisions  contained 
in  conveyances  of  land,  either  by  a  recital,  admission,  cove- 
nant, or  otherwise,  whether  in  express  terms  or  by  necessary 
implication,  and  parties  giving  and  receiving  same,  together 
■with  their  privies,  are  estopjied  fi-om  denying  the  o})eration  of 
the  deed  according  to  the  manifest  intent/  In  controversies 
concerning  the  title  to  real  estate  the  question  of  estoppel 
most  frequently  arises  in  construing  the  effect  of  covenants, 
and  it  is  a  general  rule,  that  where  a  person  conveys  land  with 
a  general  warranty,  he  having  no  title  at  the  time,  but  after- 
ward acquires  a  good  title  to  same,  such  acquisition  inures  to 
the  benelit  of  the  grantee,  because  the  grantor  is  estopped  to 
deny,  against  the  terms  of  his  own  warranty,  that  he  had  the 
title  in  question.*  But  this  effect  does  not  extend  to  any 
other  covenants  than  that  of  warranty.  The  other  covenants 
are  personal  only.  [N'or  does  the  rule  extend  to  covenants 
by  a  married  woman,  except  in  States  where  married  women 
have  been  expressly  enabled  by  statute  to  enter  into  cove- 
nants.' Although  a  grantor  can  not  set  up  a  hostile  title 
existing  at  tiie  time  of  his  conveyance,  because  he  is  estopped 
by  his  covenants,  yet  if  the  deed  be  a  mere  quitclaim,  Avitii- 
out  covenants,  and  purporting  to  convey  nothing  but  the 
interest  of  the  grantor  in  the  premises,  whatever  that  inter- 
est may  be,  without  defining  the  character  of  the  interest, 
or  aflinuing  that  he  has  an  interest  in  the  premises,  he  is  not 
deljarred  from  subsequently  acquiring,  and  setting  up,  any 
other  title,  whether  existing  at  the  time  of  his  conveyance, 
or  subscfjuently  created.'     It  has  been  held,  in  a  late  case, 

'  Mayo  V.  Wood,  50  Cal.  171.  (Vn.)  43;  Wiesner  v.  Zaun,  39  Wis. 

*Siuitli  V.    IVanklk-ld,  77  N.  Y.  18H. 

414.  »  Wilson  r.  Kins.  23  X.  J.  Imj.  m). 

»TaKf,'art  v.  Ri«!ey,  4  Orog.  235;  'Bruct-i;.  Luk«.-,  U  Kan.  201;  H  -ad 

ToUy   V.  Taunton,  119  Muks.  404;  v.  Whitteinorc,  (iOMe.  47!l;  Syilnor 

Atlantic  Dock  Co.  v.  Ix-avitt,  54  N.  v.  Pultnur,  2U  Wia.  229;  SlnunakiT 

Y.  35;  ToKt^TT?.  Yonn;?,  351(>\va,27;  v.  JohiiHon,  35  Ind.  33;  CJialiaiii  i'. 

Scoflin  V.  CirajidrttafT,   12  Kan.  4(57.  Gruhain,  55  lud.  23. 

*IJurtii<TH    V.    Keran,   24    (Jiatt. 


4-1  ABSTRACTS    OF   TITLE. 

that  the  doctrine  of  covenants  for  title  inuring,  on  ])rinci})les 
of  esto])i)el  in  favor  of  a  subsequent  grantee,  is  not  to  be 
carried  so  far  as  to  charge  a  purchaser,  or  his  attorney 
examining  title  for  him,  Avith  constructive  notice  of  deeds 
recorded  before  the  vendor  has  any  record  title,  and  that 
such  purchaser,  finding  a  good  title  of  record,  may  rely  upon 
it,  and  is  not  required  or  expected  to  look  further,'  yet  such 
decision  seems  to  be  founded  on  doubtful  authority  and  is 
opposed  to  the  great  bulk  of  American  cases  on  the  subject." 
§  7.  Equitable  Estoppel.  An  estoppel  in  pais  rests 
upon  the  princi})le  that  a  party  has  misled  another  to  his 
prejudice,  under  such  circumstances  that  it  would  be  a  fraud 
for  him  to  assert  what  may  be  the  truth.  Hence  to  raise 
an  estoppel  from  former  declarations  or  admissions  by  a 
party  to  prevent  him  from  setting  up  his  title  to  property, 
the  facts  must  show:  (1.)  That  when  making  the  statements 
or  admission  relied  upon  he  was  apprised  of  the  true  state 
of  his  own  title.  (2.)  Tliat  he  made  the  statement  or 
admission  with  the  express  intention  to  deceive,  or  with 
such  careless  or  culpable  negligence  as  to  amount  to  con- 
structive fraud.  (3.)  That  the  other  party  had  neither 
knowledixe  of  the  true  state  of  the  title  nor  convenient 
means  of  acquiring  such  knowledge  by  the  use  of  ordinary 
diligence.  (4.)  That  he  relied  directly  upon  such  state- 
ment or  admission,  and  will  be  injured  by  allowing  its  truth 
to  be  disproved.'  It  will  be  seen  that  the  important  and 
primary  ground  of  estoppel  in  pais  is,  that  it  would  be  a 
fraud  in  a  party  to  assert  what  his  previous  conduct  had 
denied,  when  on  the  faith  of  that  denial  others  have  acted,* 
but  no  man  can  set  up  another's  act  or  declaration  as  the 

'  Dodd  V.  Williams,  3  Mo.  App.  300;  McCabe  v.  Raney,  33  Ind.  309; 

278;  see  also  State  v.  Bradish,  14  Nugent  v.  Cincinnati,  etc.,  R.  R. 

Mass.  296.  Co.,  2  Dinsoj-  (Ohio),  302:  Halloran 

« Logan    V.   Steel,  4    Mon.    433;  u  Wliitcomb,  43  Vt.  306;  Horn  u. 
MitcheU  v.  Pettee,  2  W.  Va.  470;  Cole,  51  N.  H.  287;  Clark  v.  Cool- 
Bates    V.   Norcross,   17    Pick.    14;  idge,  SKan.  189;  Mallony  v.  Horan, 
Clark    V.     Baker,     14    Cal.    612;  49  N.  Y.  111. 
Do  Wolf  r.  Ilaydin,  24  lU.  525.  ••Rics  v.  Bunce,  49  Mo.  231. 

3  Martin  v.   Zellerbach,  30  Cal. 


TITLE    BY    PUECIIASE.  45 

ground  of  an  estoppel,  unless  be  has  himself  been  deceived  by 
it,'  and  a  party  can  never  be  estopped  by  an  act  that  is  illegal 
and  void.*  An  estoppel  in  pa  Is,  unlike  that  by  deed,  operates 
only  on  existing  rights.  Thus  a  person  who,  while  having 
no  title  in  himself,  induces  another  to  purchase  land  at  a 
sheriff's  sale,  by  his  representations  that  a  good  title  will 
pass  by  the  sale,  is  not  precluded  from  setting  up  afterward 
an  adveree  title  in  himself.'  At  law,  the  doctrine  of  equita- 
ble estojipel  can  not  be  a])plied  to  work  a  transfer  of  pro|v 
erty,  which  by  the  statute  of  frauds,  can  be  etfected  only 
by  a  writing,  and  the  legal  title  must  always  prevail,*  yet, 
although  a  party  can  not  divest  himself  of  sucli  an  estate 
by  parol,  he  may,  without  writing,  so  conduct  himself  witli 
reference  to  it  that  he  will  be  estopped  afterward  to  assert 
a  claim  thereto;  and  this  principle  is  applied  without  refer- 
ence to  the  statute  of  frauds.''  The  doctrine  of  estoppel 
does  not  ordinarily  apply  to  a  State  as  it  does  to  individuals. 
The  sovereign  power  is  but  a  trustee  for  the  people.  It 
acts  by  its  agents  and  the  people  should  not  be  bound  by 
any  statement  of  facts  made  by  those  agents.  For  their 
benefit  the  truth  may  always  be  shown,  notwithstanding 
any  former  statement  to  the  contrary.*  This  principle  rests, 
in  part  at  least,  u])on  the  general  doctrine  that  the  State 
can  not  part  with  its  title  to  land  except  by  grant  or  other 
record  evidence.'  An  a])]iarcnt  exception  has  been  said  to 
arise  in  those  cases  in  which  the  act  sought  to  be  made 
binding  was  done  in  its  sovereign  capacity  by  legislative 
enactment  or  resolution,"  but  this  is  not  so  much  an  exceiv 

'  Siin[»s<)n  v.  Peai-son.  31  Irnl.  1;  'Fannin  Co.  r.    Riddle,  HI   Ti'.x. 

McKinzie  v.   Sti-.-lo,   18   Oliio    St.  300;   Farisli   v.  Coon,  -H)    Cul    50; 

dH;  Dcviii-s  V.  Ha}  wood,  Gl  N.  C  Jolnisou  v.  U.  S.,  5  I^Iason   C.    C 

8:J.                             "  42.-). 

*  Mattox  V.  lliglit.shue,  39  Ind.  95.  ''Sanndc.i-s  i'.  Hart,  14  Reporter, 

*D(»naldw»n    r.   Ililmcr,  53   5Io.  040. 

492.  "AlixandtT  i'.  State,  50  CJa.  48G; 

M<..-llyj'.  H.  ndriflvH.  57Ala.  11J3;  Enlicid   r.  IV-nnit,   5    N.    11.    2^5; 

Havf-H  »•.  Livinp<ton,  34  Mirh.  3H4.  Coniniouwcaltli  v.  Andre,  3  Tick. 

»  U.  R.  Oj.  v.  iLiKHilaie,  5-1  MiiiS.  224. 
200. 


46  AUSTUACTS    OF   TITLE. 

tloii  to  the  general  doctrine  of  estoppel,  by  acquiescence  in 
an  authori/.oil  act  of  a  mere  subordinate  agent,  as  it  is  an 
original  binding  allirniative  act  on  the  i)art  of.  the  State 
itsolf,  made  in  the  most  solcniii  in  inner  iii  which  it  can 
give  expression  to  the  sovereign  will' 

§  8.  Ridatioii.  Tlie  doctrine  of  rehition  is  applied  in  con- 
veyances of  land,  to  equitable  titles  which  subsequently  ma- 
ture, either  by  operation  of  law  or  act  of  tlie  parties,  into 
legal  titles,  and  where  several  acts  concur  to  make  a  convey- 
ance, estate  or  other  thing,  the  original  act  will  be  preferred, 
and  to  this  the  other  acts  will  have  relation.  The  iiction  of 
relation  is,  that  the  intermediate  hona  fide  alienee  of  the 
inci})ient  interest  may  claim  that  the  grant  inures  to  his 
benefit  by  an  ex  post  facto  operation.  In  this  way  he  re- 
ceives tlie  same  protection  at  law  that  a  court  of  equity 
could  afford  him.  Thus,  the  assignee  of  a  certificate  of  the 
purchase  of  school  land,  the  purchase  money  being  all  paid, 
conveyed  the  premises  by  quit-claim  deed;  a  few  days  after- 
w^ard  he  received  the  patent,  and  it  was  held  that  the  legal 
title  passed  to  his  grantee.  So,  where  a  deed  is  made  in  pur- 
suance of  a  recorded  land  contract,  it  relates  back  to  the  date 
of  the  contract,  and  conveys  the  title  as  it  stood  at  the  time 
the  contract  was  recorded."  The  same  doctrine  also  applies 
to  grants  of  unlocated  land,  the  subsequent  location  oper- 
ating by  relation  to  the  original  grant."  The  doctrine  of 
relation  is  a  fiction  of  law  adopted  by  the  courts  solely  for 
the  purpose  of  justice,  and,  where  several  proceedings  are 
required  to  perfect  a  conveyance  of  land,  it  is  only  ap[)lied 
for  the  security  and  protection  of  persons  who  stand  in  some 
privity  with  the  party  that  initiated  the  proceedings  and 
acquired  the  equitable  claim  or  right  to  the  title.  It  does 
not  affect  strangers  not  connecting  themselves  with  the 
equitable  claim  or  right  by  an}^  valid  transfer  from  the  orig- 
inal or  any  subsequent  holder.* 

'  Saunders  v.  Hart,  14  Reporter,  »Dequuidre  v.  Williams,  31  Ind. 

540.  444. 

^ Welch  V.  Button.   70  111.   465;  ■•Gibson  v.   Chouteau,   13  Wall 

Snapp  V.  Tierce,  24  111.  15G.  92. 


TITLE    BY    PUKCHASE.  47 

§  9.  Prescription  and  Liiirltation.  Prescription  is  that 
title  which  arises  from  a  long  and  continued  possession  of 
property,  and  is  founded  u]wu  the  presumption  that  the 
party  in  possession  would  not  have  been  allowed  by  other 
claimants  to  hold  same,  without  a  just  and  paramount  title. 
Prescription,  in  the  ancient  sense  of  the  word,  rests  upon 
the  supposition  of  a  grant,  and  the  use  or  possession  on 
which  such  title  is  founded  must  be  uninterrupted,  and 
adverse,  or  of  a  nature  to  indicate  that  it  is  claimed  as  a 
right,  and  not  the  effect  of  indulgence,  or  of  any  compact 
short  of  a  grant.'  Presumptions  of  this  nature  are  adopted 
from  the  general  infirmity  of  human  nature,  the  difficulty 
of  preserving  muniments  of  title,  and  the  iRiblic  policy  of 
supporting  long  and  uninterrupted  possessions.  They  are 
founded  upon  the  consideration  that  the  facts  are  such  as 
could  not,  according  to  the  ordinary  course  of  human  affairs, 
occur,  unless  there  was  a  transmutation  of  title  to,  or  an 
admission  of  an  existing  adverse  title  in,  the  ]^arty  in  posses- 
sion.' The  period  of  legal  memory  or  prescription  does  not, 
at  common  law,  extend  farther  back  than  sixty  years,"  while 
forty  years  is  usually  a  sufficient  length  of  time  to  establish 
a  prescriptive  title,*  and  in  general,  it  is  the  policy  of  the 
courts  to  limit  the  presumption  of  grants  to  periods  analo- 
gous to  those  of  the  statute  of  limitations,  in  cases  where 
the  statute  itself  docs  not  apply.'  A  title  founded  upon 
prescription  or  limitation,  accompanied  by  an  atlvcrse  user  or 
enjoyment,  is  recognized  as  valid  and  substantial,  as  against 
all  save  tlie  sovereign  power,'  and  in  the  older  States  of  the 
Union,  where  it  is  difficult  to  trace  title  to  its  source,  pro]>- 
erty  is  freely  convcN'cd  on  the  assurance  furnished  by  time 
an<I  the  statute  of  limitations.  Twenty  years  is  the  i)eri()d 
ordinarily  fixod  by  the  statute  in  wliicii  to  ])c»rfect  an  advrso 
jxjssession  of  lands,  whih;  in  case  the  occupant  claims  a  title, 

'  rjay*'tty  v.  B«-thune,    11  Mass.  501;  Odiorno  r.  Wn«lo,  S  Pick.  421. 

49;  0<li<.rrif  r.  W.-wlo.  n  ri<k.  121.  «  Mdviri    r.    Wliitiri;^',    10    Tick. 

»  CJayctty  v.   IJ<tliiinf,    11  MasH.  2U:.. 

49.  '  Hunt  r.  Ilimt.  15  M.t.  175. 

•  Coolidge  V.    LcariRj,   b  I'iuk.  •  Uanliner  v.  Milkr,  17  Cul.  570. 


4S  ABSTRACTS    OF    TITT^F.. 

excln^sivc  of  anv  otlier  rir^ht,  founding  such  claim  ui^^on  some 
written  inslrument,  judgment  or  decree,  ten  years  is  usually 
suliicient,  and  in  some  States  even  a  shorter  period.' 

§  10.  Accretion  and  Keliction.  Accretion  is  the  in- 
crease of  real  estate,  caused  by  the  addition  made  by  the 
washing  of  the  sea,  a  navigable  river,  or  other  stream  to 
which  the  land  is  contiguous,  whenever  the  increase  is  so 
gradual  that  it  can  not  be  perceived  at  any  one  moment  of 
time."  The  increase  or  deposit  obtained  by  accretion  is 
technically  called  alluvion,  and  whether  produced  by  natural 
or  artificial  causes  inures  to  the  benefit  of  the  adjacent  ter- 
ritory.' Upon  all  rivers  not  navigable  by  common  law  the 
owner  of  the  land  adjoining  is  prima  facie  owner  of  the 
soil  to  the  central  line  or  thread  of  the  stream  subject  to  the 
public  easement  of  navigation.*  The  presumption  will  pre- 
vail in  all  cases  in  favor  of  the  rijiarian  pro]irietor,  unless 
controlled  by  some  express  words  of  description  which 
exclude  the  bod  of  the  river,  and  in  all  cases  where  the 
river  itself  is  used  as  a  boundary,  the  law  will  expound  the 
grant  as  extending  to  the  center  or  thread.'  Upon  navi- 
gable lakes  and  rivers,  where  the  public  easement  is  not 
interru})ted,  the  question  of  navigability  (as  at  common 
law)  does  not  arise,  and  the  riparian  proprietor  Avill  still  be 
entitled  to  all  accretions  without  regard  to  navigability." 
In  applying  the  princi})]e  that  land  formed  by  alluvion  is 
the  property  of  the  adjoining  owner,  it  is  quite  immaterial, 

'  Consult  local  statutes  for  the  352;  People  v.  R.  R.  Co.,  42  N.  Y. 

periods  of  limitation,  and  the  char-  315;  Lockwood  v.    R.    R.    Co.,   87 

acter  of  the  occupancy  necessary  Conn.  387;  Lammei-s  v.  Nissin,  4 

to  perfect  title.  Neb.  245. 

«Lovingston  v.  St.  Clair  Co.,  64  •'Hubbard  v.   Bell,   54  111.    110; 

111.  56:  Krant  v.  Crawford,  18  Iowa,  Obon  v.  MerriU,  42  Wis.  203. 

554;    Benson  v.   Morrow,    61    ^lo.  ^  Braxon    v.     Bressler,     64    111. 

352.     Tliis  definition  has  its  origin  488;  Ross  v.  Faust,  54  Ind.  471. 

in  the  In'^titutes  of  Justinian,  see  *  Lovingston  v.  St.  Clair  Co.,  64 

Lib.  II,  Tit.  I,  Sec.  20.  111.  56;  Schurmeir  v.  R.  R.  Co.,  10 

2  St.  Clair  Co.  v.  Lovingston,   23  Jlinn.    82;   MagnoUa  v.   Marshall, 

Wall.  (U.  S.)  46,  affii-mmg  64  lU.  39  Miss.  111. 
56;  Adains  v.  Frothingham,  3  JIass. 


TITLE    BY    PLRCIIASE.  49 

on  non-navigable  streams,  whether  this  allunon  forms  at  or 
aa-ainst  the  shore  so  as  to  cause  an  extension  of  the  bank,  or 
in  the  bed  of  the  stream  and  becomes  an  ishmd,'  and  where 
an  island  is  so  formed  in  the  bed  as  to  divide  the  channel 
and  form  partly  on  each  side  of  the  thread,  the  opposite 
sides  bolong  to  tha  different  projn-ietors  and  the  island 
should  he  divided  according  to  the  original  thread. 

The  increase  on  streams,  rivers  and  water  fronts  shonld 
be  divided  between  the  owners  of  the  shore,  accordins:  to 
their  respective  frontage,  so  as  to  secure  to  each  the  benefits 
which  his  original  frontage  gave  him,  and  for  this  purpose 
tie  following  rule  may  be  em]iloyed  :  Measure  the  whole 
extent  of  the  ancient  line  on  the  river  and  ascertain 
how  many  feet,  rods,  etc.,  each  proprietor  owned  on  the 
line;  divide  the  newly  formed  line  into  equal  parts  and 
a})propriate  to  each  proprietor  as  many  portions  of  this 
new  river  line  as  he  owned  feet  on  the  old.  Then  to 
complete  the  division,  lines  are  to  be  drawn  from  the  ])arts 
at  which  the  proj)rietors  respectively  bounded  on  tlie  old,  to 
the  points  thus  determined  as  the  new  points  of  division  on 
the  newly  formed  shore.  The  new  lines,  thus  formed,  it  is 
oljvious,  will  be  cither  parallel,  divergent  or  convergent,  ac- 
cording as  the  new  shore  line  of  the  river  equals,  exceeds  or 
falls  short  of  the  old."  This  mode  of  distribution  secures  to 
each  riparian  proprietor  the  benelit  of  continuing  to  lio!d  U> 
the  river  shore  whatever  changes  may  take  j^Iace  in  the  con- 
dition of  tlie  river  or  the  accretion.  The  rule  will  rjipiire 
modification  under  ]>articular  circumstances,  as  for  instance, 
if  the  ancient  margin  has  tleej)  indentations  or  sharp  jirojec- 
tions,  the  general  available  line  on  the  river  ought  to  be 
taken,  and  not  tlie  actual  length  of  the  margin  as  thus  elon- 
gated by  the  indentations  or  projections.  A  more  familiar 
rule,  and  one?  (;f  general  a|)i)lication  in  the  West,  is  to  extend 
tlie  original  watn-  froiit;ij-c  of  tin-  r.'sjieetive  i)arcels  of  land, 

'  Dccrfic-lil  t'.  AriiiH.  17I'i<k. -11;  I!;it  litld.T  i*.    Kcniston,  r,\  X.  H. 

Cinint,'<T  r.  Av.rv.  Ol  M.'.  'JiV,'.  VM'r.  Thunitoii  r.Cr.int.  lOU.  I.  177; 

'  JJ.-crlid.l  r.  Anns,  17   I'i-k.    11;  Juii.h  v.  .Juhiison,  IS  II. .w.  lOU. 
4 


50  ABSTRACTS   OF   TITLE. 

as  nearly  as  practicable  at  right  angles  with  the  original 
shore  line,  or  witli  the  course  ol"  the  river  to  the  thread  of 
th;'  stream,'  The  usual  incidents  of  title  attend  ])i'o])(M't_v 
acquired  by  accretion."  The  right  to  ;dluvi;il  format  ion  is  a 
vested  one,  and  is  inherent  in  the  i)ro])erty  itself.  It  forms 
an  essential  attribute  of  it,  resulting  from  natural  law  in 
consequence  of  the  local  situation  of  the  land.'  Reliction 
dilfers  from  accretion  only  in  that  it  results  from  the  gi-ad- 
ual  subsidence  of  Avaters,  the  effect  being  the  same.''  Accre- 
tion or  reliction  follows  the  title  of  the  land  contiguous  to 
the  alluvion,  but  will  appear  of  record  only  when  surveys  or 
divisions  have  been  made  in  the  manner  above  indicated. 

§  11.  Avulsion.  Avulsion  is  the  reverse  of  accretion, 
being  the  sudden  removal  or  deposit  of  land  by  the  perc<?])- 
tible  action  of  Avaier ;  and  the  term  is  also  applied  to  the 
derelict  left  by  the  sudden  subsidence  of  water  on  the  sea- 
shore or  on  navigable  rivers.  The  authorities  are  not  alto- 
gether harmonious,  but  the  majority,  following  the  common 
law,  place  the  title  to  such  derelict  in  the  sovereign.''  In  the 
case  of  inland  navigable  streams,  the  title  depends  upon 
local  laws,  some  States  claiming  the  title  of  the  bed  of  the 
stream,  while  others  concede  it  to  the  riparian  proprietor, 
subject  only  to  the  public  easement  of  navigation. 

§  12.  Riparian  Titles.  By  the  common  law  of  England 
the  title  to  land  under  Avater,  as  Avell  as  the  shore  below 
ordinary  high  Avater  mark  in  navigable  rivers  and  arms  of 
the  sea,  Avas  A^ested  in  the  soA'ereign  for  the  public  use.  But 
as  the  rivers  of  England  Avere  com])aratively  small,  tide 
Avaters  only  Avere  regarded  as  navigable,  and  the  confusion 
c)f  navio-able  Avith  tide  AA'aters,  found  in  the  monuments  of 
the  common  laAV,  long  preA'ailed  in  this  couutr}',  notAvith- 
standing  the  broad  differences  existing  between  the  extent 

'Miller  I".  Hepburn,  8  Bush  (Ky.),  MVarren  r.  Chambers,  25  Ark. 

326.  120;  Boorman  v.  Sunnuclis,  42  Wis. 

«  Gale  V.  Kinzie,  80  111.  132.  235. 

» Kennedy  v.  Municipality  No.  2,  ^  2  Black.  Com.  262;  Dikes  r.  Mi!- 

10  La.   Ann.   54;  St.   Clair  Co.  v.  ler,  24  Tex.  417. 
Lovmgston,  23  WaU.  (U.  S.)46. 


TITLE    DY    PURCHASE.  51 

and  topography  of  the  American  continent  and  the  British 
ishmds.  Congress,  by  special  provision,  has  fixed  the  status 
of  all  navigable  streams  and  water  ways,  in  what  was  for- 
merly a  portion  of  the  public  domain,  by  declaring  that  they 
shall  be  deemed  to  be  and  remain  public  highways,  yet  it, is 
clear  that  Congress  did  not  employ  the  words  navigable  or 
non-navigable  in  the  sense  of  being  affected  by  the  ebb  or 
How  of  the  tide.  On  the  contrary,  it  is  obvious' that  the 
words  were  emjiloyed  without  resjiect  to  the  tide,  and  Avere 
applied  to  territory  situated  far  above  tide  waters,  and  in 
which  there  were  no  salt  water  streams.  Viewed  in  the  lio-ht 
of  these  considerations,  the  federal  courts  have  adopted  the 
rule  that  proprietors,  under  titles  derived  from  the  United 
States,  bordering  on  streams  not  navigable,  unless  restricted 
by  the  terms  of  the  grant,  hold  to  the  center  of  the  stream, 
while  in  case  of  navigable  rivers  the  title  of  the  riparian 
proprietor  stops  at  the  stream,' 

Xor  will  the  common  law  apply  to  our  great  fresh  water 
lakes,  for  here  there  is  neither  flow  of  the  tide  nor  thread  of 
the  stream,  and  local  law  appears  to  have  assigned  the  shores 
down  to  ordinary  low  .water  mark  as  the  boundary  of  the 
riparian  projirietor." 

§  13.  Dedication.  A  dedication  is  an  appropriation  of 
land  to  ])ublic  use;'  the  public  and  not  merely  a  public  cor- 
poration must  be  the  chief  beneficiary,"  and  properly  s]ieak- 
ing  there  can  be  no  dedication  to  private  uses.'  Dedication 
is  express,  as  when  made  by  deed  or  other  unequivocal  act  or 
declaration;  or,  im})lied,  or  presumed  from  an  acquiescence 

'  R.  R.  Co.  V.  Schurmcir,  7  Wall.  divisions  as  lii^li  and   low  wator 

fU,  S.)   272;    Forsyth   r.    Small.    7  mark.     Tho   sul)iiu'r;:;fd  lands  art' 

Hiss.  (C.  Ct.)   201;  Barney  v.  Kc-o-  appintcnant  to  the   upland,  so  far 

knk,  4  Otto  (U.  S.),  :J2t.  as  tlu-ir  limits   can    bo   rt'asonalily 

'Wheeler  v.  Spinola,   54   N.  Y.  identilieil.     l,in<iiln   v,    L)avi8,   5;} 

;J77;  Canal  Comnirs.  v.  P«Hiplo,   5  Mich.  37.*>. 

Wend.  (N.  Y.)423.   Riparian  riK'lits  » 1  I3on.  Law.  Diet.  44.1, 

ujKm  the  jirrfat  lakes  have  Ix-en  held  '•Tcidd  r.  H.  U.  Co.,  11)   Ohio   St, 

to  Im',  in  tlnory,  the  same  as  U|Min  nij. 

navi^alilr;  Htreams,    and    an-   not  '  .M.    K.  Church  r.    IKiImiUiii,   '.V,\ 

j;<ivenied  hy  any  8uch  pmpriet.iry  N,  J,  L,  13. 


o2  ABSTRACTS    OF    TITLE. 

in  tlio  ]>nl^lii'  use,'  The  law  ref|iiivc's  no  particular  f(.rin  or 
solemnity  to  constitute  a  valid  dedication,  the  intention  of  th(^ 
owner  being  the  vital  princi]>le,  and  this  may  be  evidenced 
bv  the  owner's  acts  or  declarations  and  the  circumstances 
under  which  the  user  has  been  permitted.'  The  question  of 
dedication  arises  most  frequently,  in  the  examination  of 
titles,  in  the  construction  of  plats  and  subdivisions,  and  must 
be  determined  by  reference  to  local  law,  as  the  common  law 
(ItMlication  has  in  many  of  the  States  been  sup]>lemented  by 
statute  which  vests  the  le^al  title  to  the  dedicated  tract  in 
the  municipality."  At  comnx^n  law,  when  tlie  right  of  the 
public  to  the  use  of  land  rests  upon  no  other  foundation  than 
ii  dedication  to  public  uses,  the  easement  vests  in  the  puldic, 
while  the  fee  remains  in  the  original  owner,  and  may  be  con- 
veyed by  him  to  third  persons;  but  the  right  of  the  public 
to  the  use  is  paramount  to  the  title  of  the  owner  of  the  fee, 
and  does  not  require  the  fee  for  its  protection.' 

§  14.  Confirmation.  Confirmation  is  that  peculiar  r.])ccies 
of  conveyance,  Avhercby  an  estate  which  was  voidable  or 
inchoate  is  made  valid  and  certain,  or  where  a  particular 
interest  is  increased.  It  is  not  an  original  method  of  pass- 
ing title,  and  only  ojierates  on  an  estate  or  right  in  lands  to 
one  who  already  has  the  possession  of  same  or  some  right 
or  interest  therein. 

Though  deeds  of  confirmation  are  in  use  between  in- 
dividuals, the  tenn  is  usually  applied  to  those  confirma- 
tory acts  of  government  whereby  inchoate  or  uncertaiii 
rio-lits  derived  from  the  national  government  or  from  for- 
eign powers,  are  ratified  and  approved,  and  relates  to  the 
orio-in  of  title.  From  the  earliest  period  in  the  history  of 
the  country,  claims  to  tracts  of   land,  upon  which  persons 

>  Robertsons.  WellsviUe,  1  Bond,  79  111.  2o:  Downer  v.  R.  R.  Co.,  22 

81.  Minn.  251. 

« Wood  V.  Hiird,  34  N.  J.  L.  87;  *  M.  E.   Chnrch  v.  Hoboken.  33 

Bucbanan  v.  Curtis,   25  Wis.   99;  N.  J.  L.  13:  Cincinnati  v.  White, 

Mclntyre    v.  Storey,    80    111.  127;  6  Pet.  ,U.  S.)431;   con-pai-e  .Vllsou 

Shear  "r.  Stotbart,  29  La.  Ann.  630.  v.  Sexton,  27  lo    a,  15. 

2  Chicago,   etc.,  R.  R.  r.  Joliet, 


TITLE   BY    rUKCIIASE,  Qd 

have  settled  and  made  iiiiprovenients  in  advance  of  the 
public  surveys,  and  before  the  lauds  have  been  offered  for 
sale,  sometimes  upon  the  ex])ress  invitation  of  the  public 
authorities,  and  sometimes  ujion  their  supposed  acquiescence, 
have  been  presented  for  the  equitable  consideration  of  the 
government.  Such  claims  in  great  numbers  have  arisen 
under  other  governments  from  which  we  have  acquired  ter- 
ritory, with  treaty  stipulations  for  their  protection.  Some- 
times such  claims  have  been  submitteil  to  boards  of  commis- 
sioners for  approval  or  rejection;  sometimes  they  have  been 
referred  to  the  judicial  tribunals  for  determination,  and 
sometimes  they  have  been  directly  acted  upon  by  Congress. 
A  confirmation  can  not  strengthen  a  void  estate,  but  oidv 
one  that  is  voidalile,  anil  is  conclusive  only  as  between  tiie 
Government  and  the  coirlirmee.' 

Confirmation,  as  a  basis  of  title,  relates  maiidy  to  imper- 
fect grants  of  the  French,  S]>auish  or  Mexican  Governments, 
m  ide  prior  to  tlie  annexation  of  the  territory  to  the  United 
States,  and  may  consist  of  the  judgment  or  determination 
of  a  Ijuard  of  cijmmissionei's  organize^l  for  that  purpose,  the 
federal  courts,  or  special  act  of  Congress.  Though  it  has 
been  held  that  a  confirmation  by  law  of  a  claim  of  title,  in 
l^ublic  lands,  is  to  all  intents  and  purposes  a  grant  of  such 
lands,'  yet  it  seems  that  the  legal  title  to  lands,  confirmed 
to  a  private  person  by  act  of  Congress,  or  by  action  of  Gov- 
ernment trii)unals,  remains  in  the  Tnited  States  until  a  ])at- 
ent  is  issued  therefor,  and,  until  then,  tlie  confirmee  has 
only  an  eipiitabh'  title.' 

^  15,     Occn|»aii(\v.     Title  by  occu[taiicy  forms  a  sub  lic.id 

'  M<-a(lcr  i\  Norton,  11  Wall.  412.  rerop^iizi'd  as  valiil  and  <ntill<'il  t*) 

'Ciialli'fou.x  f.  iJucliarnie,  4  WLs.  c-onlirination,    yot   tlu'   patent,    in 

•'j'>4.  such    ciLsi'H,  is  only   «lo<'iiin<'nf;iiv 

'  I^'Iit-an    1".    Arniita^c,    47    Mo.  cviilfnce  of  the   i'.xist<'nci' of   tlit' 

i:'."^;  Aint-sti  r.  Castro,  4!)  L'al.  '.i'2H.  title,  or  of  mieh  e<juitie8  n-siM-ctinjif 

In  the  Hettleinent  <»f  tlu-He  clainiti  the  ciaiui  as  to  justify  recoj^ni  I  ion 

the   law     ha8  generally    providcMl  and     (-(jnlinnation.       Morrow     i\ 

tliat  a  patent  of  the  I'nited  StaU-H  Whitn.  \ .  .1  ()tti.(l'.  S.),  nril ;  l-;inK- 

Hhould  Im*  isMued  t«  tlie  clainiunt  dean  c.  Haiieh,  21  Wall.  (U.  8.)  Wl. 
when  hiii  cUiini  hIiouM  have  iie^'n 


54 


ABSTRACTS   OF   TITLE, 


in  Mv.  Waslil)iu*n's  atlniinible  work  on  real  pro])crty,'  l)ut 
this  nietliocl  does  not  now  seem  to  be  recognized  in  the 
Ignited  States,  if  indeed  it  ever  existed.  In  its  broad  sense,  it 
is  the  right  or  title  derived  from  an  original  state  of  natui'e; 
lience  the  American  Indian  holds  the  use  and  enjoyment  of 
his  lands  by  occupancy,  and  though  this  title  is  respected  by 
the  courts  until  legitimately  extinguished,  it  does  not  extend 
to  property  in  the  soil  and  can  not  be  made  the  subject  of 
transfer,  while  the  Government  has  ever  reserved  the  exclu- 
sive right  to  extinguish  this  title  by  ])urchase  or  concjuest.' 
In  its  technical  sense  it  was  ap})lied  to  a  method  of  ac(juisi- 
tion  once  in  vogue  in  England,  Avherc  one  was  tenant  for 
the  life  of  another  who  outlived  him.  The  estate  being  a 
freehold  did  not  go  to  his  personal  representatives,  but  not 
being  an  inlieritance  could  not  go  to  his  heirs;  and  as  a  con- 
sequence, no  one  having  a  legal  right  to  the  remnant  of  the 
estate,  whoever  first  occupied  it  acquired  such  title  by  pos- 
session and  occupancy,  that  no  one  could  dispossess  him. 
This  was  a  title  by  occupancy." 

§  16.    Abandonment  and  Keliiiquislimeut.    Thismcthod 
of  acquiring  or  losing  title  may  be  found  noted  in  all  works 


>  3  Wash.  Real  Prop.  (4th  Ed).  50 
-  Johnson  n  Mcintosh,  8  Wheat. 
543;  Fletcher  v.  Peck,  6  Cranch.  87. 
Immediately  after  the  maugiira- 
tion  of  Pi-esident  Wasliington,  he 
laid  before  Congi-ess  a  report  from 
the  Secretary  of  War,  acknowledg- 
ing the  Indian  riglitof  occupancy, 
and  recognizing  the  principle  of 
acquiring  their  claims  bj'  purchase 
for  specific  consideration  accord- 
ing to  the  "practice  of  the  late 
English  colonies  and  government 
in  purchasing  the  Indian  claims," 
and  the  rule  in  that  respect  laid 
dowTi  in  the  proclamation  of  Oct. 
7,  1763,  by  the  King  of  Great 
Britain,  interdicting  purchases  of 
land  by  private  mdividuals  from 
Indians  and  declaring  that  "if  at 


any  time  any  of  the  said  Indians 
should  be  inclined  to  dispose  of 
said  lands,'"  the  same  "shall  be 
jiurcha-sed  only "  for  the  Crown, 
the  ultimate  dominion  and  sover- 
eignty being  held  to  reside  in  the 
discoverer  colonizing  upon  the  con- 
tinent. In  accordmice  with  this 
pruiciple,  beginning  with  the 
ti-eatj-  of  1705,  at  Greenville,  the 
Indian  title  of  occupancy  has  been 
gradually  extinguislied  by  the 
United  States  in  all  of  the  States 
east  of  the  Miiisissippi,  and  in 
nearly  all  of  the  States  and  TeiTi- 
tories  west  of  same,  leaving,  in 
some  cases,  remnants  of  tribes, 
who  have  been  invested  by  Con- 
gi-ess  with  allodial  titles. 
3  3  Wash.  Real  Prop.  (4th  Ed.)  X'. 


TITLE    HY    PUKCITASE.  5& 

on  real  ]"ro]  crty,  yet  it  seems  to  occupy  a  most  uncertain 
and  indistinct  position.  Easements  and  incorporeal  rights 
annexed  to  land,  may  be  iQst  by  abandonment.  So  may  an 
incipient  right  to  land,  as  a  location  and  survey,  or  other 
merely  equitable  title,  not  perfected  into  a  grant  or  vested 
by  deed,  but  legal  rights,  when  once  vested,  must  be  divested - 
according  to  law.'  "  Yet,"  says  one  authority,  "  if  a  person 
having  the  disposing  power  al)solutely,  does  an  act  sufficient 
in  itself,  legally  to  divest  his  title  with  the  express  intention 
of  relinquishing  and  abandoning  the  property,  it  is  not  easy 
to  perceive  wh}^  he  may  not  do  so.  Abandonment,  it  is 
said,  is  the  relinquishment  of  a  right;  the  giving  up  some- 
thing to  which  one  is  entitled.  If  the  owner  sees  proper  to 
abandon  his  property,  and  evidences  his  intention  by  an  act 
legally  sufficient  to  vest  or  divest  ownership,  why  may  he 
not  do  so  in  the  case  of  land,  as  well  as  of  a  chattel?  It 
might  go  to  the  Government  instead  of  the  first  occupant, 
upon  the  principle  upon  whicli  land  escheated  or  became 
derelict."  *  It  has  been  observed,  that  a  man  shall  be  lield 
to  intend  what  necessarily  results  from  liis  own  acts.  Con- 
sequently, when  property  is  abandoned  under  such  circum- 
stances as  to  leave  no  doubt  of  the  fact,  no  one  who  has 
taken  possession  of  it  can  be  requii'cd  to  relinquish  it;  l)Ut 
abandonment  is  a  question  of  fact  for  which  no  rule  can  be 
formulated,  and  must  be  decided  by  the  ciicumstances  of 
each  case.''  It  would  seem  that  there  is  nothing  in  princi- 
ple to  prevent  the  owner  fi-om  aljandoning  his  right  of 
property  in  land,  provided  the  intention  to  do  so  be  evi- 
denced l)y  an  act  or  deed  legally  sufficient  to  oi)erate  a 
divestitura  of  the  title,  yet  this  will  so  seldom  occur  that  a 
discussi(jn  of  it  seems  unnecessary.  Oi'dinarily  when  title 
is  asserted  through  this  method,  it  will  be  found  to  depend 

'  4   Kent  f'om,    4iH;     Picl-ct    v.  rclin(|iiislmniit     in      (In'    (Jiinial 

Dowlint'.  2  Wsmli.  (Vn.)  100;  Dik.-s  Land  Oflirr. 

V.  Miller,  24  T.-.v.  117.  MV.iiiinj,'  v.  (ionl.1.10  WmkI.  rM; 

»I)ik<-»<r.  MillcT,  24T<'X.  117.      In  Holims    c.  R.  II. .  s  Am.  Law  Reg. 

tliia  CUHC  the  owner  lilt d  ji  tUiil  of  710. 


5G  T1TI,E    I!Y    PURCHASE. 

more  on  long  continued  adverse  possession  aiul  the  rights. 
conferred  by  the  statute  of  limitations. 

Examples  of  relinquishment  may  be  found  ii\  the  actions 
of  Congress  wherS  property,  instead  of  being  granted,  is 
relinquished  to  the  donee,  either  with  or  without  conditions 
annexed,  yet  all  of  the  acts  of  this  character  which  have 
come  under  the  observation  of  the  writer,  may  pro})erl3''  be 
classed  as  dedications,  notwithstanding  the  express  terra 
''relin([uishment"  is  used  as  the  operative  word.  This  is 
particularly  true  where  ])rovision  is  made  for  reverter.' 

§  17.  Eminent  Domain.  Oneof  the  sovereign  attributes 
of  the  State,  is  the  right  to  subject  the  private  property  of 
its  citizens  to  public  uses,*  but  with  the  concurrent  oljliga- 
tion  to  make  just  and  full  compensation  therefor.'  It  is 
inherent  in  the  State,  though  usually  reserved  as  well  in  the 
organic  law — the  Constitution;  and  when  it  is  lodged  to  any 
extent  in  corporations,  is  limited  b}'  the  uses  for  the  fur- 
therance of  which,  on  the  ground  of  ])ublic  policy,  it  is  con- 
ferred. Whatever  exists,  in  any  form,  whether  tangible  or 
ntangible,*  is  subject  to  the  exercise  of  this  right  includ- 
ing the  property  and  franchises  of  incorporated  companies  as 
well  as  of  individuals. 

The  exercise  of  the  right  of  eminent  domain  is  primarily 
and  mediately  the  act  of  the  State;  and  corporations  to 
which  it  has  been  delegated,  and  by  which  it  is  immediately 
exercised,  are  but  instrumentalities  of  the  State,  although 
they  may  have,  and  generally  do  have,  corporate  interests 
intermingled  and  growing  out  of  the  exercise  of  this  sover- 
eign prerogative.*  Though  the  power  can  only  be  exercised 
for  a  public  use,  it  has  never  been  deemed  essential  that 
the  entire  community  or  any  considerable  portion,  should 
directly  enjoy  or  participate  in  the  benefits  to  be  derived  from 
the  pui-pose  for  which  the  property  is  appropriated.  It  is 
enough  if  the  taking  tends  to  enlarge  the  resources,  increase 

'  See  19  U.  S.  Stat.  127.  ^ciiicago  v.  Lamed,  34  111.  203. 

'United  States  v.  Jones,  109  U.  *  Ri<?ney  v.  Chicago,  102  111.  64. 

S.  513;  JohnsoB  v.  R.  R.  Co.,  23  111.  ^  Hatch    v.  R.   R.   Co.,   1«  Ohio 

202.  St.  92. 


TITI.K    BY    I'LECII.VSE.  57 

tiic  industrial  energies,  and  jiromote  the  productive  power 
of  any  considerable  number  of  the  inhabitants  of  a  section 
of  the  State,  or  leads  to  the  growth  of  towns  and  the  crea- 
tion of  new  channels  for  the  eniplo3'ment  of  private  capital 
and  labor,  such  results  contributing  indirectl}^  to  the  general 
welfare  and  prosperity  of  tlie  whole  community.'  Compen- 
sation is  always  a  condition  precedent  to  the  appropriation 
of  the  property,*  and  when  land  is  acquired  by  the  public 
for  one  particular  use  no  additional  burden  can  be  super- 
added without  further  compensation.' 

§  IS.  Title  Aciiuireil  by  E.'uiiieiit  Daniaia.  The  general 
rule  in  this  country  is,  that  the  exercise  of  the  power  of 
eminent  domain,  particularly  when  exerted  in  behalf  of 
corporations,  extends  onh^  to  the  use  of  the  property  a})])ro- 
priated,  and  does  not  include  the  fee.^  The  easement,  how- 
ever, is  usually  regarded  as  perpetual,  and  as  such  forms  the 
basis  of  compensation;  but  should  the  use  be  abandoned,  the 
land,  disencumbered  of  the  easement  imposed  by  the  apj^ro- 
priation,  will  revert  to  the  holder  of  the  fee.  It  is  a  cardinal 
rule  that  every  statute  in  derogation  of  the  right  of  })roperty, 
or  that  takes  away  the  estate  of  a  citizen  is  to  be  construed 
strictly,"  and  no  im])lication  can  l)e  indulged  in  that  a  greater 
interest  or  estate  is  taken  than  is  abstjlutely  necessary  to 
satisfy  the  language  and  ol)ject  of  the  statute  making  the 
aj>pri)i)riation.*  It  is  not  necessary  that  exact  or  technical 
language  should  be  used  in  a  statute,  for  taking  private 
jjroperty  for  ])ublic  use,  in  order  t(j  vest  the  fee  in  the  pub- 
lic, but  it  must  clearly  ap[)t'ar  that  it  was  the  intmlion  of 

'TiilUitr.  Hudson,  82  Mass.  417;  201:  Ilatcli  v.    R.    R.  Co..  18  Oliio 

In  lU-  (ji;i«  Co.,  Ca  Barb.  437.  St.  92;  Craig  v.  R.  R.  Co.,  nt)  N.  Y. 

'  Eid<!iniUer  v.  Wj'andotte    City,  404. 

2  Dili.   ;^7'5;  Cameron   iK    Siipcrvi-  *  Morris    r.    Tiirnpik*^    Road,    fl 

Hors,  '17  MisH.   2fU:  Taris  r.  Mason,  HmkIi  (Ky.),  071;    R.  R.  C...  r.  Hiir- 

37T.'X.  447;  C<jok   v.    South    I'ark  k.-tt.  42   Ala.    KJ;  C(h>1.  y's   Const. 

CxiinmiHsioni'i-s,  01   III.    llTj.     This.  Lini.  .'lV.). 

Iiowi-vfr,  is  n  (  onstitntional  lirnita-  'Sharp  v.  Sp«'ar.  4  Hill.  70. 

lion  of  the   rJKht.     Cnitcd   Stat«M  "  ('••mcU  ry  i'.  R.  R.  Co..  08  N.  Y. 

V.  Joni-H,  umu.  s.  r,\:i.  r.ui. 

».St;il.-    r.  I.;.v,  ni.lc,   .'!!    \     .1     I,. 


58  AnSTUACTS    OF    TITLE. 

the  Legislature,  as  disclosed  hy  tlie  act  itself,  to  t;;ke  a  fee. 
If  any  remaining  private  ownersliij)  is  inconsistent  with  the 
use  for  which  the  land  is  taken,  and  compensation  is  made 
for  the  fee,  which  is  also  necessary  for  the  full  use  of  the 
])ro})erty  under  the  act,  a  fee  will  be  deemed  to  have  l)een 
taken  in  the  absence  of  express  words.'  In  some  of  the 
States  the  fee  passes  as  an  incident,"  and  excludes  any 
remaining  rights  in  the  former  owner,  but  usually  the  extent 
of  interest,  or  quantity  and  duration  of  the  estate  acquired 
by  the  exercise  of  this  power,  is  derived  from  the  specific 
act  of  approi^riation.  The  power  is  a  legislative  one,  sub- 
ject only  to  constitutional  restrictions,  and  the  only  con- 
ditions requisite  to  its  exercise  are  the  needs  of  the  public 
and  com})ensation  to  the  owner;  when  these  conditions 
exist,  the  right  of  the  State  to  withdraw  the  property 
from  private  control  and  subject  to  public  use,  whatever 
interest  or  estate  is  necessary  to  accomplish  the  intended 
]>ur[>(^se,  is  complete  and  perfect,'  and  this  interest,  accord- 
ing as  the  Legislature  may  determine,  may  consist  of  an 
estate  for  years,  for  life,  a  mere  easement,  a  conditional 
fee,  or  a  fee  simple  absolute."  It  would  therefore  a])pear 
that  the  act  of  appropriation,  whenever  the  title  has  passed 
by  the  exercise  of  this  power,  together  with  such  of  the  con- 
demnatory proceedings  as  may  be  necessary  to  show  the 
extent  of  land  taken,  are  necessary  links  in  the  chain  of  title, 
and  should  be  dul}'  set  forth  in  the  abstract. 

§  11>.  Escheat.  In  its  original  acceptation,  escheat  was 
the  right  of  the  lord  of  the  fee  to  enter  same,  when  it  became 
vacant  by  extinction  of  the  blood  of  the  tenant.  It  was  one 
of  the  incidents  of  feudal  tenures,  and  is  still  occasionally 
mentioned  as  marking  the  feudal  origin  of  American  land 
titles.  Nothing  but  the  name,  however,  is  feudal,  and  is 
only  another  instance  in  which,  in   our  land  system,  a  word 

'  Park  Commissioners  v.   Arm-  544;  Haldeman  u.  R.  R.  Co.,  50  Pa 

strong,  45  N.  Y.  234.  St.  425;  Giesy  v.  R.  R.  Co.,  4  Ohio 

«  Troy  V.  R.  R.  Co.,  42  Vt.  265;  St.  308. 

Challis  r.  R.  R.  Co.,  16  Kan.  117.  "  Heyward  v.  New  York,  3  Seld. 

*  Dingley  v.   Boston,    100  Mass.  314;  Cooley's  Const.  Lim.  g  558. 


TITLE    BY    rUKCIIASE.  59 

is  applied  in  a  sense  far  different  from  its  original  nieanino:, 
suggestino^  ideas  which  have  long  been  exploded.  Escheat, 
in  the  United  States,  depends  npon  positive  statutes.  It  does 
not.  follow  as  a  matter  of  right,  but  of  expediency.  The 
lord  of  the  fee,  holding  the  ultimate  title,  might  Avith  jn-o 
priety  assert  liis  ownership,  but  no  such  right  can  be  claimed 
by  the  State  nor  is  the  idea  compatible  with  the  full  projv 
erty  in  land  held  under  an  allodial  title.  It  is,  however,  a 
univei-sal  rule  of  civilized  society  that  when  the  deceased 
owner  has  left  no  heirs,  his  propertv  should  vest  in  the  public 
and  be  at  the  disposal  of  the  Government,*  and  by  the  general 
rule  of  the  common  law,  all  real  ])roperty  capable  of  use  and 
possession,  and  having  no  otlier  acknowledged  owner,  is  in 
theor\'  vested  in  the  king  as  the  head  and  sovereign  represen- 
tative of  the  Nation;  so  the  State,  in  its  right  of  sovereignty, 
is  said  to  possess  the  ultimate  property  of  all  lands  within  its 
jurisdiction,  "When  the  owner  dies  intestate  and  leaving  no 
inheritable  blood,  the  lands  vest  immediately  in  the  State  by 
operation  of  law;*  but  some  proceeding  is  necessary  on  the 
part  of  the  State  to  assert  the  title  thus  acquired,  which  is 
accomplished  by  a  procedure  usually  termed  *'  inquest  of 
oifice.''  the  various  steps  being  ]>i*escribod  by  statute,  and 
culminating  in  a  decree.  This  decree,  together  Avith  the 
preliminary  proceedings,  forms  the  record  evidence  of  title 
derived  in  this  manner.  The  State  on  taking  lands  by 
esclieat,  takes  the  same  title  as  the  person  last  seized,  and 
none  other,  subject  to  the  same  trusts,  incumbrances,  charges 
and  services  to  which  the  property  would  have  been  subject 
had  it  descended  to  heirs,'  tlie  State  being  for  this  pur[)osea 
statutory  heir  in  default  of  known  kindred.* 

§  2'),  ('(nifiscation.  Closely  allied  to  esclieat,  but  resting 
on  a  different  foundation,  is  confiscation,  being  flie  right  to 
aj»pr(»priate  to  the  use  of  the  Stat(',lhe  property  of  alien  eiu'- 

'  Hon.    Law   Diet.    5:i7;    4   K«iit  »  TnistCo.  r.  r.M.i)|c,  1  Siin.lf.  ( 'li. 

Cijin.  *42r,.  VV.K 

«  r«-«.p|(;   r.  Conklin,  2   Hill.  07;  *  Wallace  i?.  Ilariustid,  11  IViin. 

Saiidb  V.  Lynljaiu,  21  Giult.  21)1.  St.  IW. 


(jO  AliSTEACTS    OF   TITL12. 

luk'S  (luring  war.  liespccting  this  power  of  the  Govern- 
ment, no  tloubt  can  be  entertained.  That  war  gives  to  the 
sovereign  full  right  to  take  the  ]ier.sons  and  pro])erty  of  the 
enemy  wherever  found  is  conceded.  The  mitigation  of 
this  rigid  rule,  which  the  humane  and  wise  policy  of  mod- 
ern times  has  introduced  into  practice,  Svill  more  or  less 
affect  the  exercise  of  this  right,  but  can  not  impair  the  right 
itself."  Save  in  a  few  instances,  during  the  revolutionary 
period,  this  right  has  been  resti'icted  to  seizure  of  personal 
])ro]ierty  until  the  late  civil  war,  when  by  act  of  Congress 
of  ,Iuly  17,  1802,  the  right  of  confiscation  of  real  estate  was 
again  asserted.  But  concurrently  with  the  passage  of  this 
act,  Congress  also  adoi)ted  a  joint  resolution  explanatory 
of  it,  whereby  it  wa"s  resolved  that  no  punishment  or  i)ro- 
ceedinirs  under  the  act  should  be  construed  so  as  to  work  a 
forfeiture  of  the  real  estate  of  the  offender  beyond  his  nat- 
ural life,  and  courts  when  passing  upon  the  question  have 
uniformly  decided  that  confiscation  proceedings  in  effect, 
reach  only  the  life  estate  of  the  owner.'  The  condemnation 
goes  to  the  whole  estate,  however,  and  extinguishes  all  the 
rights  possessed  by  the  original  owner,  leaving  in  hi  in 
no  estate  or  interest  of  any  description  which  he  can 
convey  by  deed,  and  no  power  which  he  can  exercise  in 
favor  of  another.  The  forfeiture  is  complete  as  long  as  it 
lasts,  and  the  proviso,  by  way  of  grace,  gives  back  the  land 
to  his  heirs  upon  his  death.' 

§  21.     Forfeiture.      The  term   forfeiture  is  used  as  be- 
tween individuals  to  denote  the  method  by  which  an  inter- 

•  Brown    v.     United    States,    8  of  blood  and  perpetual  forfeiture 

Cranch  (U.  S.),  110.  of  the  estate  of  the  person  attainted 

'^Biglow    V.    Forrest,     9     Wall.  to  the  disinherison  of  his  heirs, 

(U.  S.)  <i39;  Dewey  v.   McLain,   7  When    the    Federal    Constitution 

Kan.  126;  Day  v.  Micon,  18  Wall.  was  formed,  this  was  felt  to  be  a 

(U.  S.)  156.  great  hardship,  and  even  rank  in- 

3  Wallach  v.  VanRiswick,  2  Otto  justice.     For  this  reason  it  was  or- 

(U.  S.),  202;  French  v.   Wade,   12  dained  that  no  attainder  of  treason 

Otto  (U.  S.),  132;  Pike  v.   Wassell,  should  work   conii])tion  of  blood 

94  U.  S.  711.     In  England   attain-  or  forfeiture  of  estate,  except  dur- 

der  of  treason  worked  corruption  ing  the  life  of  the  person  attainted. 


TITLE    BY    PUKCHASE.  61 

est  or  estate  in  lands  reverts  to  a  fonner  ownt-r  by  opera- 
tion of  law,  as  by  a  breach  of  condition  in  a  deed  or  lease. 
Forfeitures  are  not  favored  in  law,  antl  courts  eagerly  seixo 
hold  of  any  circumstances  by  which  same  may  be  defeated, 
and  where  adequate  compensation  can  be  made,  the  law 
in  many  cases,  and  equity  in  all  cases,  discharges  the  for- 
feiture u])on  such  compensation  being  made.'  In  its  more 
common  acceptation  it  is  the  means  by  which  the  proi)erty 
of  the  citizen  inures  to  the  benefit  of  the  State  by  reason  of 
the  violation  of  law,  and  in  the  United  States  occui-s  only 
in  case  of  confiscation  or  seizure  for  taxes.  In  either  case  it 
is  in  the  nature  of  a  penalty,  and  results  as  a  necessary 
incident  from  our  reci])rocal  duties  and  obligations.  As  a 
method  of  acquiring  title  it  is  viewed  with  disfavor  and  is 
of  doubtful  effect.  It  is  attended  with  greater  formali- 
ties than  any  other  form  of  purchase,  and  the  title  derived 
through  it  is  liable  to  be  defeated  by  a  vast  number  of  con- 
tingencies. Ordinarily,  titles  resting  solely  on  rights  de- 
rived through  forfeiture,  for  non-payment  of  taxes  or  other- 
wise, are  to  be  \dewed  with  suspicion  and  accepted  with 
caution,  ex])erience  having  demonstrated  in  many  cases 
their  unsubstantial  nature. 

'  Life  Ills.  Co.  V.  Norton,  5  Reporter,  SSj. 


CHAPTER  Y. 


SOURCES  OF  INFORMATION. 


§  1- 

Records. 

§  10. 

2. 

Depusit(irics  of  records. 

11. 

3. 

The  right  of    inspection 

of 

12. 

records. 

13. 

4. 

Docti'ine  of  notice. 

5. 

Constiiictive  notice. 

14. 

6. 

Actual  notice. 

15. 

7. 

Registration. 

16. 

8. 

Effect  of  recording  acts. 

9. 

Loss    or    destruction  of  i 
ords. 

rec- 

Official  aids  to  search. 
Grantor  and  gi-antee  indexes. 
Notice  lis  jicndciiff. 
Plaintiff  and  defendant  in- 
dexes. 
Tax  records. 
Official  certificates. 
Church  and  parish  records. 


§  1.  Records.  An  abstract  of  title,  as  compiled  in  the 
United  States,  is  an  abridgment  of  the  public  records,  to 
which  it  also  bears  the  relation  of  a  special  index,  they 
being  the  great  repositories  of  title,  and  the  source  from 
whence  the  examiner  draws  all  his  information.  A  record, 
it  has  been  said,  is  a  written  memorial  made  by  a  public 
officer,  authorized  by  law  to  perform  that  function,  and  in- 
tended to  serve  as  eWdence  of  something  written,  said,  or 
done."  The  acts  of  Congress  and  of  the  State  Legislatures 
are  the  highest  types  of  records,  while  the  proceedings  and 
doterminations  of  the  courts  are  scarcely  less  in  dignity, 
and  by  statutory  enactment  the  enrollment  of  deeds,  though 
made  primarily  to  perpetuate  the  memory  of  the  facts 
Avhich  they  recite,  is  given  the  operation  and  effect  of 
records.  These  records  are  of  controlling  efficacy  in  the 
State  where  made,  and  by  the  Constitution  of  the  United 
States  it  is  declared  that  "full  faith  and  credit  shall  be 
given  in  each  State  to  the  public  acts,  records,  and  judicial 
proceedings  of  every  other  State."     In  matters  of  sales  and 

'  2  Bou.  Law  Diet.  424. 


SOUKCES    OF   INFORMATION.  (j'6 

conveyances  of  land,  records  acquire  a  new  importance 
from  the  peculiar  American  doctrine  of  constructive  notice, 
which  casts  a  knoAvledge  of  their  contents  and  import  upon 
subsequent  purchasers,  and  forms  the  chief  incentive  to  the 
production  of  abstracts. 

§  2.  Depositories  of  Records.  Under  the  general 
name  of  records  are  classed  all  oilicial  acts  of  the  public 
officers  in  relation  to  title;  the  adjudications  and  determina 
tion:5  of  the  courts;  ministerial  acts  of  officers  in  furtherance 
of  tlie  taxing  power,  and  incidentally  all  papers,  whether 
filed  or  engrossed,  which  affect  title  by  relation  and  through 
the  operation  of  law.  Popularly  the  term  is  applied  to  the 
registry  of  deeds  rather  than  to  the  other  classes  men- 
tioned; but  all  come  wltliin  its  signification,  so  far,  at  least, 
as  the  puri)ose  of  abstract  making  is  concerned,  and  from 
all  of  these  varied  sources  the  exai  liner  draws  the  details 
which  go  to  make  up  a  full  exposition  of  the  title.  The 
registry  of  deeds  furnishes  the  most  fruitful  field,  and  the 
great  bulk  of  the  examination  is  compiled  therefrom,  but 
rocoarse  must  also  be  had  to  tho  government  archives,  the 
transactions  of  the  State  I-egislature,  the  files  of  all  the 
courts.  State  and  Fedsral,  ordinances  of  the  municii)ality, 
and  acts  of  the  officei's  exercising  the  ministeral  duties  of 
taxation.  Though  easily  enumerated,  these  sources  cover  a 
large  field,  and  one  which  .requires  no  ordinary  ability  to 
fully  encompass. 

§  3.  The  Right  of  InsiKH'tion  of  Records.  The  right 
to  inspect  and  copy  or  abstract  the  public  records  is  un- 
doubted to  those  who  have  a  direct  interest  therein;'  not 
only  does  such  a  right  resuK  from  the  ])lain  intendment  of 
the  recording  acts  with  reference  to  the  matter  of  notice, 
but  it  has  also  been  assured  in  a  majority  of  the  States  by 
statutory  enactments  providing  for  the  "  free  examination  " 
of  such  records  by  all  jwrsons  having  occasion  to  inspect 
tiieuj  for  any  lawful  juirpuse.  I'ut  until  very  recent  years 
tlie  (juestioM  has  usually  arisen  only  \vliei-e  the  right  elainu-d 

'Brewf-r  v.  Wats^jn,  CI  Ala.  310;  rc<»i»Ie  r.  Hiclinnls,  00  N.  Y.  OCO. 


firt  ABSTRACTS    OF    TITLE. 

was  to  inspect  or()l)taia  a  copy  of  some  ]iarticular  docimient, 
or  tliose  relating  to  a  given  transaction  of  title.  With 
res]>ect  to  the  right  of  the  abstract  maker  to  copy  or  abstract 
the  entire  records  of  a  connty  for  speculative  purposes,  the 
question  may  be  considered  of  such  modorn  origin  as  not  to 
have  been  contemplated  or  covered  by  the  common  law 
authorities  relating  to  the  inspection  of  records,'  and,  while 
it  has  been  raised  to  some  extent  by  recent  decisions,  it  has 
not  yet  become  shaped  into  any  definite  rule  or  policy  of 
law. 

It  must  be  remembered  that  the  abstract  maker  does  not 
ask  for  an  inspection  of  a  record  and  abstract  thereof,  relat- 
ing to  lands  in  which  he  claims  to  have  title  or  interest,  or 
concerning  which  he  desires  infoiTnation  in  contemplation  of 
acquiring  some  right  or  interest,  either  b}'  purchase  or  other- 
■\\ise,  and,  except  when  pursuing  some  special  examination,  he 
is  not  the  agent  or  attorney  of  parties  seeking  information 
because  interested  or  likely  to  becoma  so.  On  the  conti'ary, 
tlie  right  is  based  upon  neither  a  present  nor  prosi)ective 
interest  i  a  lands,  either  personally  or  as  a  representative  of 
others  who  have,  but  is  for  liis  own  future  gain  in  furnishing 
information  therefrom  to  third  parties  for  a  consideration. 
In  view  of  these  facts  the  volume  of  authority  seems  to 
lean  toward  a  denial  of  any  riglit  in  the  abstract  maker  to 
demand  the  inspection  and  free  use  of  public  records, 
holding  that  the  statutes  permitting  free  inspection  were  not 
designed  to  allow  individuals  the  privilege  of  copying  or 
abstracting  the  entire  records  of  a  public  office  in  which 
they  have  no  direct  or  special  interest,  or  of  using  them 
continuously  for  the  purpose  of  obtaining  information  "to  be 
used  for  speculation  and  gain  in  their  private  business." 
It  is  difficult,  however,  to  reconcile  the  reasoning  in  some  of 

'  In  England,  the  occasions  which  prosecution  or  defense  of  his  rights 

generally  have  required  the  exer-  in  pending  litigation, 

cise  of  the  power  of  the  court  to  "  Bean  v.    People,   7  Colo.   200; 

enforce  inspection  of  public  docu-  Cormack  v.  Wolcott,  37  Kan.  391; 

ments   hjve   been   those  where  a  Boylan  r.    Warren,   39.  Kan.    cOl. 

party  has  sought  evidence  for  the  In  Buck  i\  Collins,   51    Ga.    39'.,  it 


SOURCES   OF    INFORMATION".  65 

the  cases  with  the  spirit  and  general  policy  of  the  law,  or 
ANith  the  just  claims  of  business  convenience.  The  great 
utility  of  the  professional  examiner  is  a  recognized  fact,  and 
with  the  constantly  increasing  complication  of  hind  title?, 
his  assistance  in  their  proper  adjustment  has,  in  many 
localities,  beconu-^  an  absolute  necessity.  The  position  which 
he  occupies  in  the  world  of  commerce  is  second  to  none  in 
importance  and  responsibility,  and  the  free  and  unhindered 
inspection  of  the  records  should  be  accorded  him  as  a  matter 
of  public  policy  and  in  furtherance  of  great  public  interests, 
if  not  as  a  matter  of  legal  right. 

Not  the  least  among  the  reasons  assigned  in  the  foregoing 
class  of  cases  is  solicitude  for  the  preservation  of  the  sources 
of  information.  The  public  records,  it  is  said,  are  the  repos- 
itories of  the  rights  of  persons  and  of  property,  and  in  many 
cases  hold  the  only  evidence  of  either,  and  the  law  imposes 
upon  courts  and  ministerial  officers  the  duty  of  their  secure 
and  careful  protection  and  preservation;  a  protection  and 
preservation  which  might  be  greatly  jeojiardized  if  every 
citizen  at  his  will  and  pleasure  should  bo  permitted  to 
inspect,  examine  and  cojiy  them  in  his  own  way.'  It  must 
be  admitted  that  the  argument  is  weak  when  applied  to  any 

wa.s  said,  tliat  t'le  right  to  make  as  tiie  right  to  an  insi)tx;tion  of  the 

abstracts  is  a  perversion  of  tlie  pur-  books    of    a    corporation,    whi-h 

post'  for  which  the  books  are  kept,  strangers  can  notchiini,  and  wliich 

and  in  Randolpli  v.  State,   83  Ala.  is  only  allowed  to  the  corporatore, 

527.  tlie  court  says,  thit  the   right  when  a  necessity  for  it  is  shown, 

of  free  examination  is  the  rule,  and  and  the  piu-pose  does  not  appear  to 

Mie    inlii'oition    of    the    privilege  be  iiuiM-oper;    *      *      *      and   the 

when  the  purpose  is  speculative,  is  individual  wlio    claims  access  to 

the  excepti(jn.     So    in   Brewer  v.  i)ublic  records  an<l  documents  can 

Watson,  71  Ala.  299,  it  is  said:  "  It  properly  be  recpiired  to   show  tliat 

is  not  tlie  unqualified  rightof  every  he  has  an  interest  in  the  document 

citizen  t/^  demand   access  to,   and  which     is    sought,    and    that   the 

JnHpe<.tion  of   the   books  or   ilocu-  inspertion   is  for  a  legitimate  pur- 

nients  of  a   puldic   ofTlce,    though  pose. 

they  are  the  property  of  the  public  '  Webber  r.   Townli  y.    V.l  Mi<h. 

am!  pr<'««Tveil  for  pu!>Iic  uses   and  rilll;  Uian    v.    reojde,  7  Colo.   200; 

purjK)s<'H.     The  right   Is   Bubjeet  t<i  C'ormack  r.  Woleott,  !J7  Kan.  !J91; 

the  H.'ime  limitation  and  restriction  ItixU    r.    ColliiiH,    51    (ia.    IS'.il;  In 


G'3  AnSTRACTS     OF    TITI.K. 

particular  class  as  contradistinguished  from  the  general  pub- 
lic, and  fanciful  when  apj^liod  to  actual  facts  as  tliey  are 
pros'jnted  in  every  county  in  the  country.  ]\[utilations  of  rec- 
ords are  rare,  and  wIumi  instances  of  this  kind  do  occur,  it 
will  usually  be  found  that  the  mutilation  has  l)een  accom- 
plished by  some  person  having  a  s})ecial  interest  therein — in 
other  words,  by  one  whom  the  law  says  may  inspect  them. 
It  is  a  significant  fact  that  the  case  in  which  tins  theory  was 
first  advanced,'  and  Avhich  has  served  iis  the  keynote  for 
every  subsequent  decision  of  similar  im[)()i-t.  has  since  been 
overruled  in  the  court  where  it  was  pronounced.''  As  a 
matter  of  fact,  no  class  of  the  community  are  more  directly 
interested  in  the  preservation  and  integrity  of  the  records 
than  the  comjnlers  of  abstracts,  and  on  more  than  one  occa- 
sion their  indices  and  references  have  been  brougljt  into 
requisition  to  protect  public  interests  and  prevent  confusion 
of  titles." 

A  more  liberal  view^  has  been  taken  of  this  matter  in  some 
localities  and  the  rule  has  been  announced  that,  as  the  rec- 
ords are  public,  every  person  has  the  right  to  inspect,  ex- 
amine and  copy  them,  at  all  reasonable  times  and  in  a  proper 
way;  that  ministerial  officers  charged  Avith  the  custody  of 
books  and  records  can  not  deny  access  to  tiieir  offices  or  the 
books  therein  contained  to  any  person  coming  there  at  a 
proper  time  and  in  an  orderly  manner,'  and  that  any  person 
so  desiring  has  a  right  to  examine  sucii  books  and  records 
without  charge,  not  as  a  ])rivilege  or  favor,  but  as  a  matter 

Re  McLean,  8  Reporter,  813.     In  by  the  gi-eat  fire  in  Cliicago,  in 

the  latter  case  the   judges  after-  1871.     Tliis  conflagration   entirely 

ward  granted,  as  an  act  of  grace,  desti'oyed  the  pubHc  records,  and 

what  they  denied   the  petitioner  the  ante-fire  indices  of  the  local 

to  be  entitled  to  as  a  matter  of  abstract  makers  now  furnish  the 

right.  only    connected    history  of    land 

'  Webber  v.  Townley,  43  Mich.  titles  in  the  county  prior  to  that 

534.  event. 

-Burtonr.  Tuite,78Mich.  363;  29  *  People  r.   Rithards,   99   N.   Y. 

Am.  L.  Reg.  60.  620:  State  v.  Rachac.  37  Minn.  372; 

*  A  notable  example  is  afforded  Biu-tou  v.  Tuite,  78  Mich.  363. 


SOrRCES   OF   INFORMATION.  67 

of  rio-bt.'  Such  officers  mav  have  the  rio-ht  to  make  reason- 
able  restrictions  as  to  the  manner  in  which  the  books  shall 
be  examined,  and  to  exercise  a  discretion  as  to  the  matter  of 
the  admission  of  persons  to  examine  and  copy  wlien  their 
presence,  by  reason  of  numbers,  would  interfere  Avith  the 
performance  of  otlicial  duties  or  the  convenience  of  the 
general  public,^  but  tliis  should  be  the  extent  of  their  poAvers 
of  discrimination  or  refusal. 

§  4.  Doctrine  of  Notice.  The  principle  is  well  estab- 
lished, that  a  purchaser  of  land  is  chargeable  with  notice, 
by  implication,  of  every  fact  affecting  the  title,  which  would 
•  be  discovered  by  an  examination  of  the  deeds  or  other  mu- 
niments of  title  of  his  vendor,  and  of  every  fact,  as  to  which 
the  purchaser,  with  reasonable  prudence  or  diligence,  ought 
to  become  acquainted.  If  there  is  sufficient  contained  in 
any  deed  or  record  which  a  prudent  purchaser  ought  to  ex- 
amine, to  induce  an  inquiry  in  the  mind  of  an  intelligent 
pereon,  he  is  chargeable  with  the  knowledge  or  notice  of  the 
facts  so  contained,  and  generally,  a  party  in  possession  of 
certain  information  will  be  chargeable  with  a  knowledge  of 
all  facts  which  an  inquiry  suggested  by  such  information, 
diligently  prosecuted,  would  have  disclosed  to  him,'  The 
}Hirchaser  must  be  presumed  to  investigate  the  title,  and  to 
examine  every  deed  or  instrument  forming  a  part  of  it, 
especially  if  recorded,*  and  to  make  inquiries  in  pais  as  well 
as  look  at  records.'  Notice  is  classilietl  as  either  actual  or 
constructive;  but  there  is  no  difference  between  them  in  re- 
gard to  the  legal  conscMjucnce  or  effect.* 

§  5.  Constructive  Notice.     It  is  scarcely  possible  to  de- 

'  Lum  V.  McCarty,  39  N.   J.    L.  *  Acer  v.  AVescott,  46  N.  Y.  384; 

287;   Towrwiitnd   r.  R«g.  of  N.  Y..  Clii<a«o  &  K.  R.  v.  Kfiiiudy,  70 

7  IIow.  Prac.  (N.  Y.)  31H;  BiirUm  r.  111.  '.i:,0. 

TuiU.',  IH  Midi.  30a  iind  Bt-e  SUiU-,  »LittKt<»n  v.  Guldings,  47  Tox. 

Cole  V.  Racliac,  37  Minn.  372.  li><). 

'People  V.  Kicliards,   li'J   N.    Y.  'Hill  v.   E|.l.y.  31  Pa.  St.  335; 

020.  Morrison  r.  K.-lly,  22  111.  Glit;  Klli- 

^  CainLridj;*-  IJaiik  r.    Delano,  48  son  v.  Wilson,  3«  Vt.  07. 
N.  Y.  32G;   Wilrton  v.    Hunter,   ^0 
Ind.  400, 


OS  ABSTRACTS    OF   TITLE. 

declare  a  priori  wliat  shall  1)0  (Icciucd  constnictive  notice, 
because  iinquestionabl}'  that  which  may  not  affect  one  man 
may  be  abundantly  sufficient  to  affect  another,  and  Suudon 
observes,  "  that  every  one  who  has  attempted  to  define  what 
it  is,  has  declared  his  inability  to  satisfy  even  himself."  ' 
Constructive  notice  is  a  legal  inference  from  established  facts.' 
It  has  been  held  that  where  a  ])arty,has  actual  notice  of 
anything  by  which  property  is  charged  or  affected,  he  is 
bound  with  constructive  notice  of  facts  and  instruments  to  a 
knowledge  of  Avhichhe  would  have  been  led  by  incjuiry,  and 
which  Avould  have  revealed  the  true  state  of  the  title.'  Such 
would  also  be  the  case  when  a  ixarty  has  designedly  ab- 
stained from  inquiry  for  the  verv  purpose  of  avoiding  notice; 
for  the  policy  of  the  law,  and  the  safety  of  the  ])ul)lic,  for- 
l)ids  a  person  to  deny  knowledge,  while  he  is  so  dealing  as 
to  keep  himself  ignorant,  and  if  he  omit  to  make  examina- 
tion and  inquiry  in  ?.  proper  case,  he  is  conclusively  charged 
with  negligence,  and  with  notice  of  the  defects  in  the  title.'' 
In  this  country  it  has  been  uniformly  held  that  the  record 
of  a  conveyance,  executed  in  conformity  to  law,  operates  as 
constructive  notice  to  all  subsequent  purchasers  or  incum- 
brancers, claiming  under  the  same  grantor  of  any  estate, 
either  legal  or  equitable,  in  the  same  property,  provided  the 
conveyance  be  one  which  the  law  requires  or  authorizes 
to  be  recorded;^  and  such  purchaser  is  charged  with  the 
duty  of  exercising  diligence  in  making  pro]ier  examination 
touching  the  rights  and  equities  of  others,  where  the  record 
shows  that  others  have  such  rights  in  the  lands  he  is  about 
to  purchase.*  A  subsequent  purchaser  is  not  chargeable 
with  constructive  notice  of  all  instruments  of  record,  by 

»  2  Sugden  on  Vendors,  570  (x\:n.  »  1  Story  Eq.  Jur.  g  403;  Tilton 

Ed.).  V.  Hunter,  29  Maine,  29;  Crockett 

■^  Birdsall  v.   Russell,    29   N.    Y.       v.  McGuire,  10  Mo.  34. 
220.  «  Brush  v.  Ware,  15  Pet.  (U.  S.) 

history's  Eq.  §399,   and  cases      110. 
cited. 

*  1   Story's   Eq.    399,   and  cases 
cited. 


SOURCES  OF    IXFi  RMATION.  GO 

whomsocvev  niade.  but  only  of  such  as  lie  in  the  apparent 
chain  of  titl?.  or  may  be  made  l)y  one  in  some  way  con- 
nected with  the  projierty  involved  in  interest,  and  brought  to 
his  notice.'  He  is  not  bound  to  look  for  conveyances  b}^  or 
iudi^nieats  arjainst  one  iu  wliom  the  record  shows  no  title. 

The  doctrine  of  constructive  notice  under  registration 
laws  has  always  been  regarded  as  a  harsh  necessity,  and 
the  statutes  which  create  it  have  always  been  subjected 
to  the  most  rigid  construction.'  Hence,  only  the  facts  as 
the}"  a)ipear  on  the  face  of  the  record  are  deemed  binding 
on  subsequent  purchasers,  and  if,  from  any  cause,  the  real 
facts  are  there  misstated,  as  if  the  wrong  land  is  by  mistake 
described,  or  tiie  sum  for  which  a  mortgage  is  given  is  inad- 
vertently omitted,  a  subsequent  ])urchaser  in  good  faith 
relying  u})<)n  what  is  shown  will  not  be  affected  by  the  error 
or  omission.' 

The  recording  acts,  for  the  purpose  of  information  and 
constructive  notice,  have  not  altered  or  abolished  the  rules 
of  equity  in  reflation  to  actual  or  constructive  notice  by 
other  means  than  the  recording  acts.* 

§  0.  Actual  Notice.  Where  a  purchaser  has  knowledge 
of  any  fact  sufficient  to  put  a  prudent  man  upon  an  inquiry, 
which,  if  ])rosecuted  with  ordinary  diligence,  would  lead  to 
actual  notice  of  some  right  or  title  in  conflict  with  that  he 
is  about  to  purchase,  it  is  his  duty  to  make  the  inquiry,  and 
if  he  does  n<jt  make  it,  he  is  guilty  of  l)ad  faith  or  negli- 
gence to  such  an  extent  that  the  law  will  ])resume  that  he 
made  it,  and  will  charge  liim  with  the  actual  notice  he 
would  have  received  if  he  had  made  it.'  ()[)en,  not(»rioiis 
and  exclusive  possession  of  land  inipai-ts  notice  of  the  title 
of  the   ])('rs(jii   in  possessiijii,"  and  of  every    fact  which  the 

'  Carl.inc?'.  PrinKl*'.  i>0  111.  303.  »  CiunhridK*'  l^.ink  v.  D.-Iano,  4S 

«  (;iiaiiil).Tl:iin  r.  Ii.-n,7Cal.  2!i2.  N.  Y.  !i-,M}. 

'  CliamlHTlain  r.  H«'11.7  Cal.  202;  *  (im-r  v.  IliKKi'is.  -<^  Kan.  -liO; 

SanK<-r   '•.    Craiiriil,    10    Vt.     W,");  Mi-rhaii  v.  Williaiiis,  is  I'mn.  St. 

Frost  r.  Ii<'«'kmaii,  1  JoIiiik.  ('!i.  (N.  211;  C'al.ccii  c.  Unclu-nrMK't",  18  III. 

Y.I2HH.  Itl;  Tuttli-   r.  ('Imnlinian.  71  Iiul. 

«  IJoiirlaii.l  V.  I'coiia,  10  111.  .'jHS.  JJll;  Ilawlt-y  v.  .M«.iKi',  :32  .Mo.  2H7. 


70  ABSTRACTS    OF   TITLE. 

|uii'c'liaser  iniglit  Icai-n  l»y  iiiijuii'V.'  l)ut  this  rule  does  not 
a}»i>ly  to  a  vendor  remaining  in  possession,  so  as  to  require 
a  })iHvliaser  from  his  grantee  to  inquire  whether  he  has 
reserved  any  interest  in  the  hmd  conveyed.  So  far  as  the 
])urchaser  is  concerned,  the  vendor's  deed  is  conclusive  on 
that  subject.*  "While  it  is  quite  true,  generally,  tliat  tlio 
law  regards  the  actual  occupancy  of  land  as  ecjuivalent  to 
notice,  to  all  persons  dealing  with  the  title,  of  tiie  claim  of 
the  occu})ant,  this  is  not  an  absolute  ]n-(>p(«ition,  which  is 
to  be  taken  as  true  in  all  possible  rehitions,  other  than  the 
one  last  noticed.  The  circumstances  known  may  be  such 
that  the  occupancy  will  not  suggest  to  a  purchaser  an 
inquiry  into  the  title  or  claim  under  which  it  may  be,  and 
when  the  inquiry  may  be  omitted  in  good  faith  and  in  the 
exercise  of  ordinary  prudence,  no  one  is  bound  to  make  it. 
Po.vsession  out  of  the  vendor  and  actually  iu  another  person 
ordinaril}'  suggests  an  inquiry  into  the  claim  of  the  latter, 
and  evinces  gross  neglect  in  a  failure  so  to  do;  but  the  ques- 
tion in  sucli  cases  is  one  of  actual  notice,  and  such  notice 
will  be  imputed  only  where  it  is  a  reasonable  and  just  infer- 
ence from  the  visible  facts.' 

As  distinguished  from  constructive  notice,  actual  notice 
consists  in  express  infoimation  of  a  fact  brought  home  to  a 
party,  or  a  knowledge  of  circumstances  Avhich  should  lead 
him  to  a  knowledge  of  suclj  fact.  Its  existence  is  always  a 
question  of  fact,  open  to  rebuttal  or  explanation,  while,  on 
the  other  hand,  constructive  notice  is  a  presumption  of  law 
which  can  not  be  rebutted.^ 

§  7.  Registration.  The  system  of  registration  practiced 
in  the  United  States  is  unkno^vn  to  the  common  law  and  is 
essentially  a  creation  of  the  statute.    It  is  doubtless  derived 

'Tankard  V.  Tankard,  79  N.  C.  »  porneroy  v.   Stevens,    11   Met. 

54;  Pritchard  v.  Brown,  4  N.  H.  2U;  Dooly  v.  Walcott,  4  Allen,406; 

897.  Jackson  v.  Elston,  12  John.  425. 

«  Van  Keuren  v.  R.  R.  Co.,  38  N.  *  Tufts  v.  Kin<r,  18  Pa.  St.    157; 

J.  L.  165;  Tuttle  v.  Churchman,  74  Bradbury  v.  Falmouth,  18  Me.  65; 

Ind.  311;  contra,  White  v.  White,  BiixlaaU  v.  Russell,  29  N.  Y.  220. 
89  III.  460. 


SOUKCES    OF    INFORMATION.  71 

from  the  En2:lish  statute  of  enrollments,  which  was  enacted 
to  counteract  the  evil  elfects  resulting  from  the  practice  of 
secret  conveyances  under  the  statute  of  uses.  This  statute 
provided  that  every  barfrain  and  sale  of  an  inheritance  or 
freehold  shoukl  be  by  deed  indented  and  enrolled  within  six 
lunar  months  from  its  date,  either  in  one  of  the  courts  of 
Westminster,  or  before  the  justices  and  clerk  of  the  peace  iu 
the  county  where  the  lands  were  situate.  The  enrolling  of 
a  deed  did  not  make  it  a  record,  but  it  was  recorded  "  to  be 
kept  in  memory."  '  By  the  American  system  of  registration, 
conveyances  of  any  estate  or  interest  in  land,  when  duly  re- 
corded in  conformity  with  the  law  of  the  State  where  such 
land  is  situate,  have  the  dignity  and  effect  of  records,  and  to 
them  much  of  the  stal)ility  of  our  land  titles  is  attributable. 
Such  record  not  only  serves  as  a  means  of  ])reservation  of 
tlie  muniments  and  evidences  of  title,  but  also  has  the  elfoct 
to  irive  that  notorietv  to  the  transfer  formevlv  obtained  bv 
livery  of  seizin,  to  which  it  is  made  equivalent  in  some  of 
the  States  by  statute.^  The  statutes  of  registration  bear  a 
close  similitude  in  all  the  States,  and  provide  generally  for 
the  recording  of  every  instrument  in  writing,  by  which  any 
estate  or  interest  in  real  estate  is  created,  aliened,  mortgaged 
or  assigned,  or  by  which  the  title  to  any  real  estate  may  be 
affected  in  law  or  equity. 

§  8.  Effect  of  Record  ins:  Acts.  It  is  a  familiar  provision 
of  the  recording  acts,  that  every  conveyance  which  shall  not 
be  recorded  as  ])rovided  by  law,  shall  be  void  against  any  sub- 
scHiuent  purchaser  in  good  faith,  and  for  a  valuable  consider- 
ation, of  tlie  same  real  estate,  or  any  ])()rtion  thereof,  whose 
conveyance  shall  be  first  duly  recorded;  and  fuitlicr,  that 
every  instrument  recorded  in  the  manner  prescribed  by  stat- 
ute, shall  from  the  time  of  liling  same  for' record,  im])ait 
notice  to  all  jx-rsons  of  tin;  contents  thereof.  It  would 
seem,  however,  that  the  constructive  notice  alfordecl  by  llif 
reeoi-d  of  a  deed,  applies  oidy  to  those  who  are  bound   to 

'  Jaf<)irH  \mw  Diet.  '157;   TilFaiiy  '  lliglM-c  v.  Kico,  5  Mjiks.  UM. 

on  li«-gialrutiuii. 


(2  ABSTKACTS    OF    TlTr.E. 

search  for  it;  as  sul)se(jiioTit  ])urclias(M's,  and  all  otliors 
who  (U'al  with  or  on  the  credit  of  the  title,  in  tlic  line 
of  wliich  the  recoi'cK'd  deed  belongs."  That  such  record 
imparts  notice,  is  to  be  understood  also,  in  the  sense 
that  the  contents  of  tlie  deed  are  correctly  spread  upon 
the  record,"  for  the  recording  acts  can  not  be  made  by 
equitable  construction  to  embrace  cases  not  within  them, 
or  to  give  constructive  notice  of  things  the  records  do 
not  show;  and  where  a  mistake  is  made  in  recording,  a  sub- 
sequent pnrchaser  has  a  right,  in  the  absence  of  actual  notice 
of  the  mistake,  to  rely  on  the  records  as  showing  the  exact 
facts.'  But  incorrect  registration  can  not  avail  a  ])arty  who 
is  not  misled  thereby.*  The  registr}'-  of  an  instrument  not 
required  by  law  to  bo  recorded  is  notice  to  no  one,'  and  in 
the  absence  of  statutory  provisions  to  the  contrary,  a  deed 
is  not  constructive  notice,  because  copied  into  the  registry,  if 
it  has  not  been  duly  executed,  acknowledged  or  proved,  so  as 


'  Maul  V.  Eidtr,  59  Pa.  St.  1G7; 
Corbin  v.  Sullivan,  47  Ind.  SoG; 
GiUett  V.  Gaffney,  3  Col.  Col. 

*  TerreU  v.  Andi'ew  County,  44  Mo. 
309:  McLouth  v.  Hurt,  51  Tex.  115. 

*  Frost  V.  Beekman,  1  John.  Ch. 
288;  Barnard  v.  Campan,  29  Mich. 
162;  Wait  v.  Smith,  92  111.  385; 
compare  Riggs  v.  Boy  Ian,  4  Biss. 
445.  As  was  said  by  the  court  in 
Terrell  v.  Andrew  County,  44  Mo. 
309:  "  A  person  in  the  examination 
of  titles,  first  searches  the  records, 
and  if  he  finds  nothing  there  he 
looks  to  see  if  any  instnaments  are 
filed  and  not  recorded.  If  nothing 
is  found,  and  he  has  no  actual  no- 
tice, so  far  as  he  is  concerned  the 
land  is  unincumbered.  If  he  finds 
a  conveyance,  he  goes  no  furtlier; 
he  never  institutes  an  inquuy  to 
find  whether  the  deed  is  coiTectly 
recorded  or  the  contents  literally 
transcribed.     Indeed  to  attempt  to 


prosecute  such  a  search  would  be 
idle  and  nugatory.  Grantees  do 
not  usually  leave  tluir  deeds  lying 
in  the  Recorder's  office  for  the 
inspection  of  the  public.  After 
they  are  recorded  they  take  them 
away  and  keep  them  in  their  own 
possession.  In  a  large  maj(U-ity  of 
cases,  it  would  not  only  entail  ex- 
pense and  trouble,  but  it  would  be 
useless  to  attompt  to  get  access  to 
the  original  papers." 

This  is  a  vexed  question;  the 
text  states  the  preponderating 
view  but  in  several  States  a  con- 
trary doctrme  is  held.  See  Man- 
gold r.  Barlow,  61  Miss.  593;  Mines 
V.  Mines,  35  Ala.  23;  Tlirockmor- 
ton  V.  Price,  28 Tex.  C05;  Clader  v. 
Thomas,  89  Pa.  St.  343. 

•*  Gaskill  V.  Badge,  3  Lea  (Tenn.), 
144. 

■'•  Galpin  v.  Abbott,  6  Mich.  17; 
Sigouiney  v.  Lained,  10  Pick.  72. 


SOURCES    OF    INFvtKMATIO:^.  id 

to  entitle  it  to  reo-istration,'  tliouoli  such  an  instrunieni  is 
effective  as  to  all  parties  wlio  have  actual  notice  of  its  con- 
tents.^ Eeg-istration  in  legal  intendment  is  conchisive  notice 
to  the  parties  to  be  affected  by  it.  l>utnoticeof  a  prior  unre- 
corded deed,  communicated  to  a  purchaser,  will  prevail  over  a 
subsequent  recorded  deed/  and  as  between  the  immediate  par- 
ties no  registration  is  necessary,  an  unrecorded  deed  having 
the  effect  to  carry  the  legal  title  as  against  all  persons  having 
actual  notice  of  its  existence." 

§  0,  Loss  or  Di'stnicf  ion  of  Records.  The  obligation  of 
giving  the  notice  required  by  law  rests  upon  the  party  holding 
the  title,  and  if  his  duty  is  imj»erfectly  performed,  he,  and  not 
an  innocent  purchaser,  must  suffer  the  consequences;'  yet  in  a 
majority  of  the  States  that  duty  is  effectively  performed  by  fil 
in<2:  the  doed  or  instrument  for  record,  and  when  this  has  been 
accor.iplished,  the  party  has  done  all  that  the  law  requires.' 
Where  a  party  has  in  all  respects  complied  with  the  law  the 
total  or  ]>artial  loss  or  destruction  of  the  record  will  not,  it 
seems,  impair  any  liglits  which  may  have  accrued  tlierounder 
nor  affect  ♦  lie  constructive  notice  alforded  by  the  filing  or  re- 
cording of  the  instruments,  \vliifh  still  remain  of  binding  force 
and  effect  upon  .'ubsequent  purchasers. '  In  the  event  of  tlie  de- 
struction of  the  record,  as  well  as  of  the  original  instrum  Mit, 
an  abstract,  shown  to  be  made  in  the  ordinary  course  of  liusi- 
ness,  and  delivered  to  the  parties  interested  in  the  bind,  is,  as 
to  such  lost   instrument,   competent  evidence  of  the  facts 

'  I>»u;:;hri(l!^<' f.  Bowland.rri  Miss.  bucIi  as  every  reasonable  and  lion- 

ry'.d:  I'r'm'^h-  v.  Dunn,  57  Wis.  449;  est  man  wouKl   feel   lx)uiiil   t»»  act 

BIoimI  7-.  H1<»(k1,  2:Jrick.  80;  Bishop  npon.     Hasting  v.    Cutler,  2."»  N. 

V.  Sclir.<i<l.r.  4«   Mo.    472;  Parrctt  H.  (4  Fost.)  4s:}. 

r.  SliaMiut,  5Minn.  323;  WaKliImm  'Clail>orue  v.    IToIuies,  51  Mi.ss 

r.  Burnham.  63   N.  Y.    132;  Joni-s  140. 

f.  RoUrts,  (5")  Me.  27;5.  -"Musij^rove  v.  Bonser,  SOreg.  318. 

»Bjlhs  v.    r^till,    50    Miss.    800;  »T«-rrfll   r.    Amhew   Couuly,  44 

Mtihi.k    V,    Barney,    -19    Mo.    458;  Mo.  309. 

Mu.s;crove   v.   Iion.s<T,  5   Ore;^.  313.  '  Hi^^^H  f.  B<»ylan,  -1  Biss.  415. 

WlnTc  upf»n  tlic!   n-f'onlH  u  deft-ct-  ■■  Mi-yers  r.   Buclianati,   W  Mi.ss. 

iv  •   lifil  i■^  fouiiil  and   is   Hr<-n,  Uiis  897;  (ianiuion  r.  Hoilp-s,  73  III.  110; 

inu.Ht  Im-  rfgiirded  im  actual  notife,  Steele  i'.  Bo«jne,  75  111.  457. 


74  ABSTRACTS    OF   TITI.E. 

tlieivin  vocitcd,  eitlierby  coniit}'  or,  in  some  States,  l)y  cx]^ross 
enaetmriU:'  l)i!t  wlioivsucli  abstract  is  iiiiintellii;'il)lo  without 
the  aitl  of  some  proof  to  explain  the  meanini!;  of  abhrcviations 
and  initial  letters  nsed  therein,  unless  some  stipulation  has 
been  made  which  determines  what  effect  shall  be  given  to 
them,  it  would,  seem  that  the  abstract  is  insufficient  to  estab- 
lish title.' 

§  1 0.  Onicial  Aids  to  Searcli .  'No  perfect  abstract  can  be 
compiled  without  the  assistance  of  a  carefully  prei)ared  tract 
index,  the  details  of  which  will  be  fully  considered  in  another 
place;  and  should  the  county  records  be  supplemented  Avith 
this  indisjiensaljle  adjunct,  the  searcher  will  have  less  diffi- 
culty and  experience  more  satisfactory  results.  Presuming, 
however,  that  no  books  of  this  character  are  provided  by 
the  authorities,  recourse  must  be  had  to  such  doubtful  aids 
as  by  law  the  various  officers  are  required  to  keep.  These 
consist  ordinarily  of  a  series  of  alphabeticall}^  arranged  indexes 
with  brief  descriptions  of  the  property.  Well  kept,  they 
will  be  of  much  assistance;  if  otherwise,  the n'' will  prove  very 
misleading.  In  all  sales  or  real  estate,  where  no  bettor 
methods  are  available,  these  indexes  should  be  carefully  con- 
sulted and  a  rough  chain  obtained,  which,  by  reference  to 
the  records,  can  be  am]>lified  into  an  abstract. 

§11.  Oraiitor  and  Grantee  Indexes.  The  grantor  and 
grantee  indexes  of  the  Registry  of  Deeds,  will  sliow  the  suc- 
cessive conveyances  and  incumbrances  under  the  names  of 
the  various  parties  who  at  different  times  have  held  the  title, 
ichere  there  has  been  no  hreak  in.  the  chain,  together  with  the 
volume  and  page  of  therecordon  which  the  instruments  may 
be  found.  Adverse  deeds,  unless  within  the  knowledge  of  the 
examiner,  can  rarely  be  found  by  this  method,  or  if  found 
are  usually  the  result  of  accident  rather  than  design.  Should 
a  brief  descri])tion  of  the  property  be  carried  out,  as  is 
usually  the  case,  ending  with  the  section,  town  and  range, 
in  proper  columns,  these  columns  should  always  be  carefully 
run  down  for  any  conveyances   that  may  have  escaped  the 

'  Russell  V.  MiinJell,  73  111.  136.  "  Weeks  v.  Dowiiig,  30  Mich.  4. 


SOURCES    OF    INFOKirATIOX.  To 

searcher's  attention,  while  jj-oinir  over  the  names,  TThile  it 
may  bo  the  duty  of  the  recorder  to  keep  a  proper  index  of 
his  books  of  registration,  so  that  one  soarcliin<i:  the  records 
may  easily  lind  what  is  or  is  not  contained  therein,  yet  a 
conveyance  properly  filed  and  copied  on  the  records  is  re- 
corded within  the  meaning  of  the  law,  and  imparts  notice  to 
subsequent  jiurchasers,  notwithstanding  the  failure  of  the 
recording  ofhcer  to  index  it.  The  index  is  no  part  of  the 
records.' 

Index  entries  are,  however,  frequently  hold  sufficient  to, 
charge  notice,  and  this  too,  even  though  no  description  of 
the  pro]ierty  is  entered  but  simply  the  words,  "  see  record  " ' 
or  "  certain  lots  of  land; "  '  nor  is  it  necessarily  and  essentially 
a  prerequisite  to  a  valid  registration  that  the  index  should 
contain  a  description  of  the  lands  conve3'ed,*  and  if  it  dis- 
closes enough  to  put  a  careful  and  prudent  examiner  on  in- 
quirv,  and  if,  on  such  inquiry  an  adverse  title  would  have 
been  ascertained,  the  part\^  will  be  held  to  notice. 

§  12.  Notice  Lis  Pendens.  As  a  further  precaution  care- 
ful search  must  always  be  made  for  notices  lis  pei}(1cns,  or 
attachments.  These  are  usually  kept  in  books  separate  from 
the  records  of  deeds  and  mortgages,  and  \^t\  frecpiently  are 

'  Bishop  v.  Schneider,  46  Mo.  472;  the    case    of    conveyances,  would 

Cliatliani  v.  Bradford,  50  Ga.  327;  seem  to  require  that  the  index  to 

Bjard    of  Commissioners  v.  Bab-  be  kept  by  the  clerk  should  be  re- 

lock,  5  Oreg.  472;  Ins.  Co.  r.  Dake,  parded  as  essential  to   the  lien  of 

>7    N.    Y.    257;    Curtis  v.  Lyman,  jud^nents;  yet  no  one,  we  suppose, 

24  Vt.  a.'i*^:  Gladinf^  r.  Frick,  88  Pa.  would  claim   tliat   the  cfTect  of  a 

St.  400.    The  index  is  not,  as  a  rule,  judj^ment  wjis  de|icndent   on   the 

made-    essential    by    sUituto,     and  act  or  omission  of  the  clerk  in  inak- 

tliou^^h  the  courts  in  some  instjmces  ing  the  index."     (Jreen  v.  (Jariin;;- 

WN'm  tfj  have  indicated  that  it  is  a  ton,  1(5  Ohio  St.  548;  but  see  Howe 

material  part   of   the   rec<jrdK   the  u.  Thayer,  4'j  Iowa,  151;  Ix)ml>aid 

reasons  therefor    do  not  seem  to  be  r.   Culliertson,  51)  Wis.  4:W. 

mjund  or  in  cons<jnance  witli  tiio  'White  r.    Haiiiiit<in,    1.S    Iowa 

genera!  doetrine  on   this  sui)je<t.  200. 

"The  ()rineiplc."ol»Herve«  White..!.,  '  Itostwick  7".    Powers,    12    Iowa, 

"  tli.it  wouhl   justify   the   holding  450. 

i\\(*  index  U>  Im'  essential  t*»  the  *  Banuy  r,  J.itlle,  15  lowa,  5115 
elTectivo  cluiractcr  of  the  record  ia 


7<>  ABSTRA.CTS    OF    TITLE. 

not  noted  on  the  reception  or  al})liabetical  indices,  ])ai'licu- 
lai'ly  in  smaller  counties  Avliere  less  method  is  observed  than 
in  larg-er  and  more  active  places.  AVlicn  filed  according  to 
la\v  they  create  a  lien  upon  the  land  and  arc  notice  to  all 
subsetjuent  purchasers.  Whoever  takes  a  title  to  pro})erty 
in  litigatkm,  2J>endc?ite  lite,  will  be  bound  by  the  ju(li;iiient  or 
decree  in  the  suit.' 

§13.  riaiiitilf  and  Defemlaiit  Iiidexo:^.  The  plaintiff 
and  defendant  indexes  of  the  courts,  Avhen  such  are  ke])t, 
should  be  further  consulted  for  jiidginents  and  pending  suits 
against  any  of  the  parties,  who  at  an}'-  time  during  the 
])eriod  that  judgments  are  a  lien  on  land,  have  held  title  to 
the  property  in  question.  The  index  generally  shows  the 
present  status  of  the  case  and  refers  to  other  records  or  files 
where  its  history  may  be  obtained.  Tncse  books  will  ])e 
found  far  more  satisfactory^  in  tlieir  rewulU  than  the  indexes 
of  the  recorder's  office,  though  not  always  available  to  de- 
tect adverse  matters.  Shoidd  these  useful  books  not  form  a 
part  of  the  machiner}'-  of  the  clerk's  oOice,  recourse  must  be 
had  to  the  judgment  docket. 

§  14.  Tax  Records.  A  further  search  must  also  be 
made  in  the  records  of  the  county  clerk's,  or  auditor  s  office 
for  delinquent  taxes,  tax  sales,  forfeitures  and  judgments, 
the  indices  and  aids  by  way  of  reference  in  this  de]xirtment 
being  usually  very  ample,  and  affording  all  the  infornuition 
necessary. 

§  15.  Oflicial  Certificates.  It  is  fre!]uently  the  custom 
of  the  examiner  to  a])pend  to  an  abstract  of  this  character, 
the  certificates  of  the  officers  having  the  custody  of  the  rec- 
ords examined,  yet  in  a  majority  of  cases  such  certificates 
do  not  materially  enhance  the  value  of  the  examination  as 
evidence,  and  unless  forming  a  ])art  of  their  official  duty 
create  no  responsibility  on  the  part  of  the  certif3ang  officer. 

§  10.  Church  and  Parish  Records.  It  is  not  customary 
for  examiners  of  title  to  extend  their   inquiries   beyond  the 

'  Crooker  v.  Crooker,  oT  Me.  305;  Leitcli  r.  Wells,  48  N.  Y.  585;  Jack- 
son V.  Wanen,  32  111.  331. 


SOURCES    OF    IXFOKMATIOX.  T7 

public  records  kept  pursuant  to  law,  nor  will  the  exio-encies 
of  many  cases  demand  a  greater  scope.  The  admirable  s_ys- 
tem  of  registration  which  exists  in  every  State  is  amply  suf- 
ficient for  almost  every  purpose  connected  with  the  develop- 
ment of  title  and  the  preservation  of  the  muniments  by 
which  same  is  evidenced.  But  occasionally  a  missing  link 
— birth,  death,  or  mari'iage — can  only  be  supplied  by  evi- 
dence aliujuJe  the  record,  and  to  effect  this,  recourse  must  be 
had  to  less  reliable  testimony. 

Church  or  parish  records  are  f  requentl  y  resorted  to  in  the 
determination  of  doubtful  questions  of  pedigree — proof  of 
Jjirth,  or  death  of  ancestor,  as  well  as  to  settle  questions  of 
legitimacy  in  mattei*s  of  succession.  Kor  is  there  any  good 
reason  why  a  ])arish  register  should  not  be  received  and 
credited.  It  has  been  held  that  they  serve  a  purpose  equiv- 
alent to  that  served  by  family  records,  and  are  fairly  to 
be  dealt  with  as  equivalent  to  corporation  records,  which 
are  generally  taken  as  evidence  of  such  matters  as  are 
recorded  in  the  usual  course  of  aiTaij'S.*  While  there  is  not 
much  authority  on  the  suljject  in  this  country,  yet  all  the 
analogies  and  reasons  which  apply  to  other  presumptively 
correct  documents  apply  to  these." 

'  Hunt  V.   Chosen    Friends,    C-1  pliia  were  held  admissible  in  a  land 

Mich.  071.  controversy  in  Kentucky,  tried  in 

*  The  (juestion  was    decided  in  one  of  the  United  States  Courts.    It 

favor  of  such  entries  in  an   eai'ly  was  there  exjiressly  held  that  they 

case  in  the  Supreme  Ctnirt   of   tlie  were  competent  testimony.    Lewis 

Uniti'd  States,    where   tlie   entries  v.  Marshall,  5  Pet.  (U.  S.)  470. 
of  burial  iu  a  church  in   riiiladcl- 


CHAPTEE  YI. 

INDICES    AND    EEFEKENCES. 
§  1.     Importance  of  indexes.  g  9.     Tlie  irregular  index. 


2. 

Patent  systems. 

10. 

Tlie  tax  index. 

3. 

The  Government  tract  book. 

11. 

The  judgment  index. 

4. 

Field  notes  of  Government 

Vi. 

Decrees    and  sales  in 

surveys. 

eery. 

5. 

The  original  entiy  books. 

13. 

Vowel  index. 

6. 

Document  number  index. 

14. 

Laymg  out  the  books. 

7. 

Long  form  entries. 

15. 

Resume. 

8. 

The  tract  mdex. 

clian- 


§1.  Importance  of  Tiidexos.  In  rnanA^  portions  of  tlie 
United  States  no  indexes  are  kept  by  the  examiner,  Avho  re- 
lies in  the  preparation  of  his  abstract,  solely  upon  such  meager 
facilities  and  aids  as  are  usually  afforded  by  the  public 
ofiices,  the  details  of  which  were  fully  considered  in  the  pre- 
ceding chapter.  A  perfect  and  complete  abstract  however, 
can  be  compiled  only  with  the  assistance  of  properly  pre- 
pared indices  and  references,  by  the  aid  of  which  the  exami- 
ner will  be  enabled  to  produce  a  perfect  chain  of  recorded 
title,  however  intricate  or  complicated  it  may  be;  without 
them,  diligence  and  learning  will  avail  but  little,  and  the 
abstract  as  a  necessary  consequence,  be  incomplete  and 
lacking  in  many  important  particulars. 

§  2.  Patent  Systems.  In  this  age  of  labor-saving  in 
ventions  it  is  not  strange  that  many  schemes  should  have 
been  devised  to  lighten  and  abridge  the  labors  of  the  exami- 
ner in  the  preparation  of  abstracts  of  title.  These  "  systems  " 
are  usually  protected  by  copyright  or  letters  patent,  and 
warranted  by  their  respective  originators  to  meet  all  the 
exigencies  that  can  possibly  arise*    Not  infrequently  some 

(78) 


INDICES    AND    REFERENCES.  70 

of  these  patent  systems  possess  merit,  and  in  a  liniitecl  Tvay 
may  encompass  the  end  for  "which  they  are  designed.  Ex- 
perience has  not  demonstrated  their  usefulness,  however, 
but  on  the  contrary,  in  most  cases  has  shown  their  utter 
inutilit}".  As  a  rule  they  are  highly  chimerical,  and  in 
practice  prove  a  fraud,  a  delusion  and  a  snare. 

There  is  no  royal  road  to  abstract  making  known  to  the 
writer,  and  the  examiner  who  desires  to  produce  only  just 
and  perfect  work  will  derive  but  little  assistance  from 
any  method  that  seeks  to  dispense  with  conscientious  lal)or, 
or  avoid  the  deep  and  thorough  investigation  essentially 
necessary  to  a  full  and  accurate  development  of  title.  x\n 
abstract  prepared  on  any  of  the  patent  methods  wliich  have 
been  brought  to  the  attention  of  the  writer,  if  at  all  com])li- 
cated  or  involving  intricacies  of  title,  must  needs  be  imper- 
fect, and  hence  univlial)le,  and  counsel  should  reject  such 
compilations,  or  at  most  pass  only  a  qualified  i)])inion. 
The  methods  detailed  in  this  volume  are  neither  patent  nor 
cojiyriglit  systems.  They  are  the  results  of  years  of  pi-actice, 
and  are  those  now  employc^d  l»y  the  abstract  raakere  of  Chi- 
cago, where  this  science  has  been  more  fully  developt'tl  than 
in  any  otlier  place  in  the  world. 

§  3.  Tho  Goverinnent  Tract  l?ook.  Among  the  perma- 
nent archives  of  a  local  government  land  office  are  a  series 
of  township  plats  antl  tract  books,  upon  which  it  is  tlieduty 
of  the  Register  to  note  a  j^i-oper  entry  of  the  fact  of  the  sale 
of  any  land  in  the  district.  These  tract  books  are  arranged 
in  the  regular  order  of  townships  in  a  range,  and  of  sections 
in  the  township,  or  fractional  township,  and  afford  all  the 
ne'^-essary  particulars  of  the  metiiod  of  tlie  disposal  of  the 
land  in  the  district;  name  of  purchaser;  price  paid;  number 
of  certificate,  etc.  Where  the  land  olfice  is  still  in  ()i)erati(»n 
these  j)articulai'scan  be  obtained  from  the  Jicgislcr,  and  inilis- 
tricts  where  same  has  been  discontinued,  the  archives  ai'e 
usually  dep(jsite<l,  in  jjui-suance  of  an  act  of  (Vingress,  in  the 
office  of  the  8ccr<?tary  of  State,  or  sonu;  other  designatid 
offic«'r  of  the  State;  in  which  the  land  office  was  situate.  A 
copy,  or  compilation,  of  the  (jovernniciit  I^uul  Ollice  records 


80  ABSTRACTS    OF   TITLE. 

forms  tlio  roundation  of  all  the  exam incv's  indices,  and  will 
be  fmind  an  invaluable  adjunct,  if  not  an  indispensaljle 
requisite,  to  all  clfective  examinations  showinii;  the  entii'e 
course  of  title.  This  index  should  briefly  indicate  the  gov- 
ernm(Mitaldesci"ii)tionof  the  land;  tlie  name  of  the  purchaser; 
the  character  of  the  entry,  as  sale,  homestead,  etc.;  the  date 
of  entry;  nuiiiher  of  certificate,  and  note  of  cancellation  and 
re-entry,  if  any;  and  finally  the  issuance  of  patent,  with 
date  and  name  of  patentee,  llecourse  for  the  latter  infor- 
mation must  be  made  to  the  General  Land  Office  at  AVashing- 
ton,  if  necessary,  as  the  possession  of  the  information  is 
essential  and  will  save  much  time,  annoyance  and  many 
perplexing  questions  to  client  and  counsel,  owing  to  the 
usual  loose  methods  of  early  proprietors  and  theimjvorfection 
of  county  records. 

§  4.  Field  Notes  of  Government  Surveys.  The  field 
notes  of  the  government  surveyors  afford  the  elements 
from  which  the  plats  and  calculations  in  relation  to  the 
public  sr.rveys  are  made,  and  are  the  source  wherefrom  the 
description  and  evidence  of  locations  and  boundaries  are 
officially  delineated  and  set  forth.  They  contain  a  minute 
record  of  all  the  official  acts  of  the  surveyor,  in  relation  to 
the  measurement  of  the  public  lands,  establishing  of  bound- 
aries, etc.,  and  present,  as  far  as  possible,  a  full  and  com- 
plete topogra])hical  description  of  the  country  surveyed. 
A  copy  of  thece  notes,  as  well  as  of  the  official  township 
plats  made  in  connection  therewith,  should  be  found  in  every 
abstract  office,  for  the  field  notes  of  th-e  original  survey 
enter  into  and  form  jiart  of  the  description  of  land  in  all  the 
certificates  of  entiy  and  patents  from  the  government,  and 
are  of  controlling  imi)ortance  in  determining  the  true  loca- 
tion of  public  lands.'  The  original  monuments,  as  long  as 
they  can  be  ascertained,  afford  the  most  satisfactory  if  not 
conclusive  evidence  of  the  lines  originally  run,  which  are 
the  true  boundaries  of  the  tract  surveyed,  whether  they 
conform  to  the  plat  and  field  notes  or  not,  on  the  principle 
that  monuments  alwa3's  control  courses,  distances,  quantity, 

'  Hunt  V.  Rowley,  87  111.  491. 


INDICES    AND    KEFERENCES. 


81 


etc.  These  monuments  are  regarded  as  facts,  -wliilo  tlio 
tield  notes  and  plats  indicating  courses,  distances  and  quan- 
tities, are  but  descriptions  wliicli  serve  to  assist  in  ascertain- 
ing the  facts,'  yet  when  such  monuments  become  lost  or 
obliterated  by  time,  accident  or  design,  the  notes  and  plats 
are  all  that  remain  to  lix  tlie  original  location  of  the  monu- 
ments and  determine  true  boundaries.'  Iso  description  can 
be  more  definite,  certain  and  satisfactory  than  according  to 
government  survey.' 

§  5.  The  Original  Entry.  The  books  used  in  the  busi- 
ness of  aljstract  making  resemble,  in  many  particulars,  tliose 
in  common  use  in  mercantile  transactions,  the  day  book  and 
ledger  of  the  merchant  bearing  a  strong  analogy  to  the 
original  entry  and  index  of  the  examiner.  The  series  ot 
books  designated  as  original  entries,  comprise  an  epitome 
of  the  transactions  of  the  day  in  the  various  record  offices 
of  the  county,  so  far  as  the  same  may  in  any  way  atfect  or 
implicate  the  title  to  land,  set  forth  with  whateVer  degree 
of  fullness  the  exigencies  of  the  occasion  will  admit,  or  the 
inclination  of  the  examiner  dictate.  There  is  no  special 
method  of  arranging  these  books,  the  convenience  of  the 
comjnler  usually  determining  tliis  point,  the  onl}"  essential 
being  that  the  transactions  of  the  day  are  shown  under 
])roper  chronological  heads.  "Where  the  volume  of  business 
daily  passing  through  the  recorder's  office  is  very  large,  only 
a  brief  note,  showing  the  nature  of  the  instrument,  parties, 
date,  and  a  condensed  descrij)tion  of  the  property,  can  bo 
shown  on  the  original  entry,  the  date  at  the  top  of  the  ])age 
showing  the  date  of  record,  thus  : 

Kov.  29,  1882. 


Doc,  No. 


Graxtok. 


Grantee. 


Inst.  Date. 


DESCRIin-ION. 


'  M<riinU)cki'.  Rf)pprH.  11  III.  270. 
»  S:iwy<T  r.  Cox,  0:5  III.  lUO;  Hau- 
er  i".  0:ittinunh:iUMen,  05  III.  I'J'J. 
6 


•Kni.so  r.  Scrii»i)H,  11  III.  08. 


S2  ABSTRACTS    OF   TITLE. 

In  Cliicago,  where  from  two  to  three  liundred  instruments 
fivcjiuMitly  pass  through  the  recorder's  olHce  in  a  single  day, 
tlie  above  mctliod  is  pursued,  the  examiner  making  liis 
entries  from  the  original  instruments,  the  only  practical  sys- 
tem under  circumstances  similar  to  the  foregoing.  This 
inl'orniation  may  be  obtained  from  the  reception  indexes  of 
the  recorder's  office,  and  while  this  might  be  sufficient  in  a 
majority  of  cases,  yet  oversights  or  omissions  are  liable  to 
occur.  ]iarticularly  where  the  deeds  are  noted  in  alphabet- 
ical and  Hdt  numerical  order.  The  danger  is  apparent  when 
it  is  renu'ml)ered  that,  where  a  deed  properly  acknowledged 
and  certitied,  is  left  for  record  with  the  recorder,  it  takes 
effect  from  that  date,  although  not  entered  on  the  receiving 
book  until  afterward.' 

"Where  the  original  instrument  forms  the  basis  of  the  entry 
a  further  index  is  necessary  to  furnish  the  book  and  page  of 
the  record  for  ready  reference  in  making  the  abstract,  which 
is  easily  accomplished  where  the  now  very  common  system 
of  document  numbers  is  employed.  After  the  instrument 
has  been  formally  filed  for  record  the  actual  transcribing 
does  not  occur  for  several  days  or  perhaps  weeks,  yet  as  the 
instrument  takes  effect  and  operates  as  constructive  notice 
from  the  time  it  is  filed,  from  obvious  reasons  the  examiner 
must  obtain  his  notes  of  same  at  that  time  and  not  Avait  for 
the  uncertain  contingency  of  actual  transcription.  The 
document  number  is  placed  on  the  instrument  at  the  time  of 
filing,  and  forms  a  portion  of  the  original  entry;  it  is  posted 
as  well  on  the  tract  index,  and  in  making  up  the  chain  (as 
hereafter  explained), -forms  a  key  by  Avhich  the  particular 
instrument  is  always  identified. 

§  G.  Document  Number  Index.  As  the  numbers  run  in 
consecutive  order,  a  book  called  the  Document  Number 
Index  is  provided,  in  which  all  the  numbers  of  the  series  are 
first  written  or  printed.  At  the  close  of  business  hours  of 
each  day,  all  the  instruments  which  have  been  transcribed 
during  the  da}^  are  collected,  and  oj)posite  the  number  of  the 

'  Poplin  V.  Mundell,  27  Kan.  138;  and  see  Haworth  v.  Taylor,  108 
lU.  275. 


INDICES    AND    REFERENCES. 


S3 


tleed  in  the  Document  Xuniber  Index,  are  written  the  book 
and  page  on  which  it  has  that  day  been  recorded,  thus  fur- 
nishing a  ready  and  easy  reference  to  the  books  of  the  office, 
thus: 

1—100 


Doc.  No. 


lUU 


Book. 


Page. 


614 


520 


Doc.  No. 


Book. 


Page. 


§  7.  Loiis:  Form  Entries.  Whenever  practicable,  the 
original  entry  should  consist  of  a  full  abstract  of  every 
instrument.  In  the  cities  this  is  frequently  im]iossible,  but 
in  sparsely  settled  counties,  or  in  places  where  only  a  small 
number  of  conveyances  are  filed  daily,  it  can  easily  be 
accomplished,  and  the  examiner  will  then  have,  in  his  own 
possession,  a  complete  du})licate  of  the  material  i)arts  of  all 
the  records  of  the  count}'-,  an  acquisition  that  circumstances 
may  make  of  inestimable  value.  By  this  method  the  greater 
portion  of  the  abstract  can  be  compiled  without  consulting 
the  records,  thus  etfecting  a  great  saving  of  time,  labor  and 
expense,  and  in  many  other  ways  it  Avill  be  found  equally 
advantageous.  It  is  unnecessary  to  dilate  on  the  subject  of 
care  and  accuracy  in  the  compilation  of  these  entries,  or  the 
necessity  of  thorough  revision.  AVhen  made  fr<»m  the 
original  documents,  errors,  unless  of  a  very  radical  nature, 
may  be  detected  on  abstracting  the  deed  from  the  records, 
but  if  the  long  form  system  be  used,  an  error  perpetrated  in 
the  entries  will  be  repeated  in  the  indexes,  and  again  in  the 
abstract,  furnishing  endless  confusion  and  a  remote  possibility 
of  a  law  suit  for  damages. 

§8,  The  Trart  linle.x.  The  tract  index  occlqucs  much 
ilio  same  ])osition  in  the  abstnict  otlico,  that  the  great 
led;Lr<'r  (h.es  in  the  counting  room.  It  is  the  receptacle  for 
all  tln!  ncjtes  of  the  entry  Ixxtks,  when*  the  great  mass  of 
r-ach  «lay's  transactions  is  .separat«'d,  classified  and  arranged, 
and  exhibits  at  a  glance  on  its  broad  pages,  tlu;  balance  shec^t 
of  all  the  land  titles  of  the  county.  It  is  the  b. initiation 
stone  upon  which  the  entire  superstructuie  <»f  the  business 


S4 


ABSTRACTS   OF   TITLE. 


rests,  ami  the  source  from  "wlioncc  the  examiner  draws  all 
bis  primary  information  in  i)rei)ai'infr  the  abstract.  Tliis 
index  is  arranged  with  sole  reference  to  the  land  in  the 
county,  by  sections  or  parts  of  sections  in  case  of  unsubdi- 
vided  lands,  and  by  lots,  blocks  oi*  subdivisions  in  respect  to 
such  as  have  been  resurveyed  and  platted.  For  convenience 
it  should  contain,  as  fa,r  as  practicable,  all  the  specific  allu- 
sions to  particular  tracts  found  upon  the  records,  whether 
conveyances,  agreements,  releases,  attachments,  sales,  lis 
jyeiidens  and  other  notices,  or  other  instruments  affecting 
title,  or  mentioning  such  tracts  or  any  part  thereof.  In 
addition  all  other  instruments,  capable  of  definite  location, 
though  containing  no  descri])tion,  should,  as  in  case  of  spe- 
cific instruments,  be  posted  under  the  particular  classification 
to  which  they  proj>»  rly  belong.  For  ordinary  use  six  or 
eight  quire  demy'  books  will  be  found  the  most  serviceable, 
the  number  of  volumes  being  regulated  by  the  size  of  the 
county,  population,  prospects,  etc.  The  books  should  l)e 
ruled  across  with  heavy  and  faint  blue  lines,  and  the  page 
divided  with  red  lines  in  the  following  proportions: 

Sec  16—1—23. 


2002 


Jno.  Doe  &  wf 


Hich'd  Koe 


N  W  i  N  W  i 


M. 


1-16-78 


2-10-78 


1—25 


A— 515 


The  foregoing  sample  page  would  be  posted  from  the 
original  entries  as  follows:  the  left  hand  column  is  filled  by 
the  document  number,  the  second  column  by  the  grantor's 
name,  the  third  by  the  grantee's,  while  the  -wide  space  next 
following  is  devoted  to  a  brief  description  of  the  property. 
The  nature  of  the  instrument,  indicated  by  the  initial  letter 
cr  some  abbreviation,  occupies  the  next  space,  while  in  the 

'  Tlie  domy  page  is  recommended 
mainly  on  account  of  its  width, 
but  cap  size  is  more  convenient 
for  handling.  Tlie  demy  sheet  is 
16x21,  making  a  page  16x10^; 
the  cap  page  is  14x8 J.     For   the 


original  entiy  a  four  quire  cap  is 
recommended.  Should  a  double 
page  be  devoted  to  the  tract  index 
cap  will  also  be  found  to  be  the 
more  convenient  form. 


INDICES    AND    REFERENCES.  85 

t\ro  succeeding  columns  much  information  may  be  condensed 
into  little  s})ace  by  writing  on  both  the  heavy  and  faint 
lines.  Thus,  in  the  first  column  the  upper  line  is  intended 
to  represent  the  date  of  the  instrument;  as,  first  month,  six- 
teauth  day,  ISTS,  the  lower  line  in  like  manner  representing 
the  date  of  record.  So,  in  the  last  column,  the  upper  line 
will  represent  the  book  and  page  of  the  entry,  which,  if 
written  in  extenso  will  be  the  only  reference  needed  on  malc- 
ing  the  chain,  the  entry  supplying  all  the  desired  infornui- 
tion  that  could  be  aiforded  by  the  record;  the  lower  line  of 
this  column  represents  the  book  and  page  of  the  record. 
Sliould  the  examiner  so  desire,  another  column  may  be 
added,  in  which  are  noted  "  remarks,"  notes  of  reference, 
satisfactions,  re-records,  etc.,  all 'of  which  will  be  found  to 
greatly  enhance  the  value  of  the  volume.  In  posting  these 
books,  economy  of  space  should  always  be  kept  in  view, 
otherwise  they  will  soon  become  numerous  and  cumbersome, 
greatly  retarding  the  examiner's  labors.  The  faint  lines 
should  always  be  used  in  case  of  long  descriptions,  and  the 
poster  is  allowed  considerable  latitude  in  tlie  matter  of  abbre- 
viation and  condensation.  So  long  as  the  identity  of  the 
parcel  is  preserved,  the  description  used  in  this  book  is  of 
little  moment;  for  it  will  be  remembered  this  is  but  an  index 
to  the  place  where  the  full  and  oi'iginal  deseri])tion  may  lie 
found.  For  example :  A  description  commences  at  the 
northeast  corner  of  the  northeast  quarter  of  a  stated  section, 
town  and  range,  and  describes  in  a  lengthy  manner,  by  metes 
and  bounds,  an  irregular  shaped  ti'act  which  contains  eleven 
acres,  the  description  ending  at  the  ])lace  of  beginning.  It 
will  save  time  and  space,  and  be  just  as  correct  as  an  index, 
to  post  tli(;  parcel  as  "11  ac.  in  N.  E.  cor.  X.  E.  ^." 

§9.  Irn*y:uljir  Index.  This  index  is  designed  as  a  recc])- 
tacle  for  all  matters,  except  judgments,  that  from  their 
nature ilo  nota<lniitof  specilic  |)ostingin  the  tract  indices.  ( )f 
this  nature  are  general  powers  of  attorney,  uidess  the  exam- 
iner sees  lit  to  keep  a  S('|>arati' booU  for  same;  releases  and 
Siitisfactifjn  ])ieces,  which  describe  I'lo  projterty  and  are 
incapable  of  (h'linite  locution;  general  ciMilirniat ions,  assign- 


SG  ABSTRACTS    OF   TITLE. 

iiit'iifs.  afTldavits,  etc.  Tlie  index  consists  of  two  books, 
;irr;in<^v(l  alpluihetically,  by  grantors  and  grantees,  and  is 
uset.1,  in  compiling  the  chain,  in  exactly  the  same  manner  as 
the  judgment  indices.  It  is  posted  in  the  same  manner 
as  the  tract  index,  except  that  in  place  of  the  descrip- 
tion of  the  property  is  noted  a  brief  statement  of  the 
sul)ject-matter  of  the  instrument,  the  other  details  being  the 
same.  In  all  compilations  this  index  should  be  carefully 
searched  for  the  names  of  all  parties,  grantor  and  grantee, 
who  at  any  time  during  the  period  covered  by  the  examina- 
tion have  held  title  to  the  land  in  question,  or  possessed  any 
equities  therein.  In  cases  of  variances  in  the  orthography 
of  names,  it  is  advisable  to  Y>ost  same  both  in  the  categor}^ 
to  which  the  spelling  of  the  name  would  properly  consign 
it,  and  in  the  section  where  the  examiner  has  reason  to 
believe  it  rightfully  belongs.  Thus  should  the  name  as  found 
be  Lauson  and  the  examiner  from  other  indicia  have  reason 
to  believe  the  name  is  Slauson,  the  two  names  to  insure 
accuracy  should  be  noted  on  the  index,  the  latter  being 
identified  by  an}^  system  of  marks  the  examiner  may 
adopt  to  show  that  it  is  a  substitute. 

§  10.  Tax  Index.  AVith  the  exception  of  sales  for  taxes, 
everything  capal)le  of  sucli  treatment  should  be  posted  in  the 
tract  index.  Tax  sales,  however,  can  best  be  handled  in  a 
separate  volume,  and  as  a  large  ]iortion  are  followed  by 
redemption,  much  dead  matter  will  thus  be  kept  off  those 
books.  This  index  is  posted  after  every  sale,  and  should  be 
arranged  t  show :  the  description  of  the  property;  the 
name  of  the  person  against  whom  the  tax  was  assessed;  the 
nature  of  the  tax  for  Avhich  the  sale  was  made,  as  sreneral, 
special,  state,  county,  municipal,  special  assessment,  and  the 
like;  the  amount  of  the  tax;  the  year  for  Avhich  it  was 
le^'ied;  the  date  of  sale;  and  if  desired  tlie  name  of  the  pur- 
chaser. On  the  right  hand  margin  of  the  I3age  a  space 
should  be  left,  on  which  may  be  entered  the  fact  of  redemp- 
tion. At  the  top  of  the  page  the  section  or  subdivision  is 
written,  as  in  the  tract  index.  In  com])iling  the  chain  of 
title  this  book  is  consulted  in  the  same  manner  as  the  tract 


rXDIOES    iJSTD    SEFERSITCES. 


ST 


index,  and  a  list  of  all  the  sales,  fcrfeitures,  etc.,  taken  off, 
Avhich  is  then  sent  to  the  ollice  of  the  custodian  of  the  tax 
records  and  verified  l\v  his  bo(^ks.  All  the  redemptions  are 
stricken  from  the  chain,  and  existing  liens  shown  as  here- 
after directed.  A  note  of  all  the  redem])tions  is  then  made 
in  the  index,  thus ; 

Sec.  10—12—14. 


s  w  li  s  \v  14 


Thos.  Higgins 


Gen 


Apr 

10 
1881 


10,  50 


S.  R.  Smith 


Red.  June  1.  SI 


Should  circumstances  permit  the  examiner  to  procure  a 
daily  list  of  redemptions,  this  index  would  be  much  more 
serviceable,  and  considerable  labor  be  saved  in  preparing 
the  abstract.  Such  a  course,  however,  is  rarely  practicable, 
and  the  method  above  indicated  is  that  ordinarily  followed. 

§11.  Judgment  Index.  The  judgment  index  consists 
simply  of  an  alphabetically  arranged  index  of  names,  taken 
from  the  court  files  every  day,  and  shows :  the  name  of  the 
judgment  debtor,  the  })laintiff  or  judgment  creditor,  the 
court  in  which  the  judgment  is  docketed,  the  general  num- 
ber of  the  case,  the  time  of  rendition  or  docketing,  the 
amount  of  the  judgment  and  costs,  and  the  fact  of  satisfac- 
tion in  the  same  manner  as  tax  liens.  In  practice  this  book 
is  used  the  same  as  the  tax  index.  The  following  will  be 
found  a  suitable  form  for  the  page: 


mitb,  John  R.  Union  Towing  Co. 


i.Mar 

'0 

Circuit  18S1 


ISO  00 


16  00 


6ai.  Mur.  15,  18S2 


If  desired,  a  further  column  may  be  ad<l('d,  showing  llu» 
nature  of  the  suit.  This  book  is  used  only  for  money  judg- 
ni(;nts,  or  such  as  create  a  lien  on  l.iiid.  Oectrees  in  chanc(M*y, 
or  actions  and  pntc<'('dings  involving  directly  the  title  to 
real  estate  arc  j«^sted  in  tin-  !'iiiri;il  tr.ici  jrnlicrs. 


8S  AESTRACTS    OF   TITLE. 

^12.  l)(»crees  and  Salos  in  Chancery.  No  scjxiratc  in- 
dex should  1)0  kei)t  Hvr  })roceediiigs  in  court  of  an  ecjuitablo 
nature.  For  ])eudinL;"  suits  a  note  of  the  lis  j'evth/is  or  at- 
tacliniont  as  found  in  the  reg-istry  of  deeds  is  suilicient.  For 
decrees,  orders  or  sales  made  in  pursuance  thereof  an  origi- 
nal eiitiy  should  be  kei)t  as  in  case  of  deeds,  etc.,  showing 
as  fully  as  may  be  the  entire  transaction,  and  ])osted  as 
other  instruments  are  in  the  general  tract  index.  These 
proceedings  have  all  the  stability  of  conveyances  between 
individuals,  and  form  ])ermanent  muniments  of  title.  Exe- 
cution sales  may  be  kept  in  like  manner. 

§  13.  Towel  Index.  In  addition  to  the  books  described 
in  the  foregoing  paragra])hs,  all  of  which  are  indispensal)le 
in  a  proi)erly  equipped  abstract  office,  there  are  a  number  of 
su[)plemental  volumes  that  may  be  used  to  advantage.  Chief 
among  these  supplemental  books  may  be  mentioned  an  index 
to  grantees  arranged  alphabetically,  and,  for  the  purpose  of 
more  ready  reference,  by  vowel  sounds.  In  this  boolc  are  writ- 
ten the  names  of  all  grantees,  and  after  same  the  book  and 
page  of  the  record  where  the  name  appears  and  a  reference 
to  the  book  and  page  of  the  original  entry  of  the  examiner. 
The  name  is  Avrittcn  but  once,  all  subsequent  transfers  being 
posted  opposite  same  by  simple  reference  to  book  and  page. 
A  form  for  this  book  wull  readilv  suggest  itself. 

The  primary  object  of  this  index  is  to  furnish  a  ready 
means  of  ascertaining  the  present  or  past  interests  of  any 
individual  ^vho  at  any  time  has  held  the  legal  title  to  lands 
in. the  county,  and  to  facilitate  search  for  real  estate  stand- 
ing in  the  name  of  judgment  delators. 

§  14.  Laying  Out  the  Books.  Considerable  judgmeiiv 
must  be  exercised  in  laying  out  a  set  of  abstract  books,  not 
so  much  for  economy  in  material,  though  this  may  be  an 
object,  but  for  economy  of  time  in  their  use,  which  is  a  very 
important  consideration.  The  aim  of  the  examiner  should 
be  to  have  his  indices  preserve  such  a  correspondence  in  all 
their  parts,  that  posting  shall  cease  in  every  division  of  the 
work  at  about  the  same  tnne.  To  attain  this  end,  wdiere  a 
section  or  subdivision  is  thickly  })opulated  and  sales  are  fre- 


INDICES   AND    REFERENCES. 


89 


quent,  devote  considerable  space  and,  if  necessaiy  for  greater 
convenience,  index  same  by  half  or  quarter  sections  instead 
of  sections.  In  less  active  localities  index  by  sections  and 
devote  less  space.  In  a  new  county  this  question  must  be 
determined  by  geographical  considerations,  present  location 
of  towns,  railroads,  water  Avays,  etc.  In  older  places  the 
experience  of  the  past  will  usually  furnish  a  safe  guide  in 
tliis  respect  for  the  future.  Alphabetical  indexes  are  laid 
out  on  technical  and  arbitrary  princi]iles  based  upon  experi- 
ence in  the  distribution  of  initial  letters  in  names.  Thus  it 
is  found  that  certain  letters  occur  much  more  frequently 
than  others  in  the  commencement  of  names,  and  space  must 
be  given  accordingly.  The  following  table  will  be  found  a 
safe  guide : 

SCALE   FOR   INDEXING   BOOKS. 


^  is 

S 

9 

c 

e 

e 
% 

9 

"6 

^0 

9 
21 

7 

n 
1 

w 

"8 
Jo 

9 
W 
~8 
-6 

C 

*« 

"9 

28 

9 

10 
80 

9 
I. 

To 

32 

9 
9 

IT 

34 

9 

n 

;-i5 

'5' 

31 

9 
'^ 
12 

9 

A 

1 

1 

1 

2 

3 

r^ 

.. 

i\   il  6 

12 

B 

2 

3 

4 

6 

7 

rlVi! 

i6 

40 

C 

2 

3 

4 

5 

-^• 

'1 

3'u 

ii 

10 
6 

12 

13 

;4 

15 

13 

7 

12 
13 

16 
14 
8 
l:^ 
f4 

17 
15 
8 
13 
i5 

18 
16 
8 
14 
16 

1'.: 

17 

9 

15 

16 

20 

21 

19 
11 

IS 
20 

21 
li 
19 
21 

24 

D 

2 

3 

4 

5 

', 

4 
7 

7 

8 

7 
8 

9 
5 
8 
9 

ll.!l3 

18118 
10  10 

22 

E 

J 

1 

2 

"75 

i.  5 

4 
6 
6 

^1  7l  7 

12 

P 

3 
3 

1 

5 
"5 

9il0!ll{ll 

16 
17 

17 
IS 

20 

G 

10 

iijii 

12 

22 

H 

3 

4 

~o 

7 
2 
3 

9 
2 
3 

10 
3 
4 

1214 

14 
3 
5 

1« 
3 
6 

13;:-.. 

21 
4 

7 

23 

4 

8 

11 

13 

2-. 
5 
8 

11 

i"4 

27 
'5 
9 
12 
1-^. 

28 
5 
10 
i3 
16 

•^9 
6 
10 
14 
16 

30 

6 

lu 

32 

6 

11 

(; 
11 

15 
19 

34 

6 

12 

15 

36 

I 

1 

3 
4 

3 
5 

3 
6 

3 

7 

6 

J 

2 

6 

12 

K 

2 

2 
3 

3 

4 

4 
5 

4 
5 

5 
6 

6 
8 

6 
8 

7 
9 

8 
10 

9 
11 

10 
12 

15  16 
17  IS 

16 

L 

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192) 

M 

3 

4 

"  -1  '•;  15 

4 

16 
4 
6 

18 
4 
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18 
5 
7 

20 
5 

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L'l 

6 

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23 
-6 

8 

25 
6 
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26 
6 
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27 
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29  31 

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32 

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10  10 

11  11 

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1314 

Q 

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17  1 .,.,.. . 

; 

T 

1 

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00  ABSTRACTS    OF   TITLE."] 

,^  IT).  Rfsir.np.  The  forj'ij-oin^^  brief  sketch,  it  is  hopr>(l, 
will  furnish  siitticient  hints  to  enable  one  with  no  prev Dus 
experience  to  lay  out  and  kee]>  a  set  of  liooks  in  a  metlivul- 
ical  and  intellig'ible  manner.  Many  things  "will  suggest  them- 
selves to  the  examiner,  arising  from  local  causes,  while 
his  own  ingenuity  will  enable  him  to  improve  on  the  forms 
here  given.  Having  then  started  the  books,  the  next  thii^i,'- 
in  order  is  to  prepare  an  abstract  from  them,  and  this  ^vill 
form  the  subject  of  the  next  chapter. 


CHAPTER  YIL 


COMPILIXG  THE  ABSTRACT. 


v;  1.  Generally  consiilered.  §  8.  Fullness  of  narration. 

2.  The  extent  of  the  search.  9.  Examiner's  notes. 

3.  Making  the  chain.  ,  10.  Irregular  instruments. 

4.  Formal  parts.  1 1 .  Abbreviations. 

5.  Tlie  caption.  12.  Letter  press  copies. 

6.  Arrangement  of  the  abstract.        13.  Concluding  certificate. 

7.  Synopsis  of  instruments. 

§  1.  Generally  Considered.  Examinations  of  title  in  the 
United  States,  Avliieh  are  usually  prepared  by  professional 
examiners,  do  not,  as  a  rule,  disclose,  except  inferential} v, 
any  matter  or  thing  affecting  title  save  what  appears  of 
record,  and  searches  are  mainly  restricted  to  '  the  public 
records  of  the  county.  Ordinarily  this  is  suflicient,  and  a 
careful  search  will  reveal  all  that  is  necessary  to  a  proper 
estimate  of  the  title,  and  fully  protect  intending  purchasers. 
In  Enghind,  where  the  abstract  is  prepared  from  original 
documents,  it  is  customary  to  give  a  far  wider  range  to  the 
examiner's  efforts  and  to  include  not  only  tlie  material  ])arts 
of  de(.'(ls,  wills,  etc.,  but  of  records  and  private  acts  of  l*ar- 
liament,  and  even  of  public  acts  passed  for  private  purposes, 
which  miglit  in  any  wi.se  implicate  or  affect  the  title;  and  to 
the.se are  added  such  facts  as  fill  up  the  interval  of  title,  as 
descents,  deaths,  marriages,  births,  bui-ials  and  «ttlier  eirc-uni- 
stances  geni.'rally  called  matters  in  jutis^^  and  when  it  is 
necessary  to  ])i'ove  a  ])edigi'ee,  as  wliei*e  a  descent  (ncurs  in 
the  coui*se  of  the  abstract  in  the  ab.sence  of  luitter  evidence, 
In;  has  recourse  to  wills  of  rehilives,  extracts  fiom  parish 
books,  from  famil}'  bibles,  and  even  from  tombst«»nes.'     The 

'  1  I'rcBt.  on  Abstracta,  43.  » Hrown's  Law  Diet.  5. 

(•Jb 


02  ABSTRACTS    OF   TITLE. 

syateiu  of  registration,  of  ])rol)ate  proceedings,  and  of  judi- 
cial intjuiry  and  detenuination,  and  the  ett'cct  of  such, 
renders  the  English  examiner's  mt'tlioils  useless  to  a.  large 
extent  in  the  United  States,  yet  it  can  not  Ijc  denied  that 
opportunities  frequently  occur  for  a  judicious  breach  of  the 
conventional  observance  of  record  evidence  only,  and  for  the 
introduction  of  what  may  properly  be  called  matters  in  j^ais. 
§  2.  The  Extent  of  tlie  Search.  The  examination  upon 
its  face  i)ur})orts  to  show  the  course  of  title  from  a  delinite 
to  another  definite  date,  and  the  fair  and  reasonable  import 
of  the  undertaking  is,  to  make  a  full  and  true  search  relative 
to  the  title  during  that  period  and  to  note  on  the  abstract 
every  transfer,  etc.,  affecting  the  same,  actually  made  and 
entered  of  record  between  those  dates.  It  imposes  no  duty 
or  obligation  to  inquire  into  the  existence  of  any  judgments 
entered,  or  conveyances  recorded,  prior  to  the  date  men- 
tioned as  the  commencement  of  the  search,  neither  is  the 
examiner  required  to  ascertain  or  certify  as  to  any  lien  aris- 
ing under  any  such  prior  judgment,  though  the  same  may 
have  first  attached  and  become  operative  after  that  tune  by 
reason  of  the  fact  that  the  judgment  debtor  then  first 
acquired  title  to  the  })remises;  nor  is  he  bound  to  inquire  or 
state  whether  the  title  vested  in  any  grantee,  during  the 
p.n-iod  covered  by  the  examination,  was  affected  by  any 
])rior  conveyance  or  any  estoppel  growing  out  of  any  cove- 
nants therein.'  It  must  be  obvious,  however,  that  an  exami- 
nation in  strict  conformity  to  the  foregoing  will  in  many  in- 
stances defeat  the  ver}'  object  of  the  search,  and  hence  it  is 
customary  to  show  subsisting  tax  and  judgment  liens,  even 
though  accruing  prior  to  the  date  of  the  commencement  of 
the  examination,  and,  except  in  case  of  continuations,  an 
abstract  deficient  in  this  resi)ect  should  be  rejected  by  coun- 
sel, as  no  safe  opinion  can  be  predicated  upon  it.  In  all 
cases  where  the  lien  first  attaches  during  the  period  covered 
by  the  examination,  it  should  be  shown,  whatever  may  have 
.  been  its  inception,  and  any  departure  from  this  rule  is  to 

»  Wakefield  v.  Chowen,  26  Mum.  379;  Dodd  v.  Williams,  3  Mo.  App.  278. 


COMinLIXG    THE    ABSTRACT.  98 

roll  tlie  abstract  of  its  cliaracter  of  a  trustworth}'  guide, 
ami  reiluce,  if  not  vitiate,  its  value  as  an  evidence  of  the 
true  state  of  the  title.  In  many  localities  it  is  custoniarv 
to  dispense  with  a  formal  abstract,  and  in  its  stead  the 
examiner  merely  "certifies  the  title,"  as  being  good,  bad 
or  doubtful,  in  an  individual  named,  basins:  his  certiiicato 
upon  his  personal  examination  of  the  records.  Again,  while 
the  examiner  may  present  a  synopsis  of  the  deeds,  etc.,  it  is 
simply  for  the  pur})ose  of  showing,  like  the  Englisli  abstract, 
the  ]iresent  title  of  some  specilied  person,  the  chain  com- 
mencing at  some  given  point  as  the  root.  In  a  case  of  this 
kind  unusual  care  is  required,  lest  a  prior  conveyance  operat- 
ing by  way  of  estoppel,  may  not  defeat  the  title  shown.  It 
is  customary  in  an  examination  similar  to  the  one  under 
consideration,  to  commence  with  a  deed  showing:  a  jrood 
title  in  vendor  or  his  grantor,  and  thence  continue  down  to 
the  date  of  the  certificate.  There  is  not  wanting  authority 
to  sujiport  an  examination  of  this  character,  and  it  has  been 
h(iltl  that  a  deed  recorded  before  the  grantor  has  any  record 
title  may  be  safely  disregarded  in  examination  of  title,  under 
the  system  of  registration  and  notice  adopted  in  the  different 
States  of  the  Union;  that  such  a  deed  would  not  be  con- 
structive notice  to  any  innocent  purchaser; '  and  further, 
that  a  purchaser  finding  a  good  title  of  record,  is  not  ex- 
pected to  look  behind  it."  The  rule,  however,  is  unsafe  and 
docs  not  prevail  generally,^  and  counsel  before  ]mssing  on 
an  examination  purporting  to  sliow  no  more  than  iibovc 
stated,  should  have  satisfactory  assurance  tliat  no  ])ri(>r  decsls 
exist  of  record,  or  his  o[)inion  should  indicate  tlie  ])»)ssililc' 
defects  of  title  resulting  therefrom. 

§  3.  Making  the  Cliaiii.  V>  'fore  coninicncing  tlit^  foniial 
al)Stract  a  ])i'rliiiiin;irv  sketch  should  lirst  be  made  from  all 
the  indices.  This  sketch  c.illfd  the  "chain"  is  siuiplv  a 
series  (jf  brief  notes  of  all  conveyances,  incumbrances   and 

'  DoiM  t'.  Williuin.H,    '.i   Mo.   A\>\k  '  Sep  "  EHtoi>j)i'l,"   "  l*'otico  "  and 

27H.  "  KcgiNtnitioti." 

» State  V.    Hra<liHli.  11  M.ws.  200. 


9-i  ABSTRACTS   OF    TITLE. 

liens  afTectinf^  tho  projiortv  under  consideration,  ns  shown 
by  the  tract  index,  and  where  the  ori<;inal  entry  is  meaner, 
the  examiner  uses  tliese  references  in  making  lull  abstracts 
of  the  instrnments  from  the  records.  It  also  shows  what 
instrnments  are  associated  Avitli  the  names  of  those  whom 
the  tract  index  invests  with  title,  that  ajipear  upon  the  irreg- 
ular index;  the  names  of  all  who  at  any  time  have  held  title 
which  are  found  upon  the  judgment  index;  and  all  tax  sales 
or  forfeitures  of  the  premises  as  shown  by  the  tax  index. 
These  latter  are  then  verified  by  comparison  with  the  rec- 
ords, and  all  satisfactions  or  redemptions  stricken  from  the 
sketch.  The  instruments,  proceedings,  etc.,  are  then  num- 
bered and  arranged  in  the  order  in  which  the  al)stract 
sliould  be  written,  and  furnish  a  reference  guide  for  this 
portion  of  the  work. 

§  4.  Formal  Parts.  The  abstract  should  be  prepared  in 
a  neat  and  orderly  manner,  and  so  disposed  as  to  facilitate 
the  labor  of  counsel  in  passing  on  the  title.  A  formal  cap- 
tion should  apprise  the  reader  at  the  outset  of  the  subject  of 
the  examination,  while  the  different  searches  should  be  ar- 
ranged under  classified  heads,  and  for  purposes  of  conven- 
ient reference  the  various  conveyances  and  statements  should 
be  numbered  consecutively  from  the  beginning.  The  result 
of  the  search  should  be  recapitulated  at  the  conclusion  by  a 
certificate  covering  all  the  essential  features  of  the  exarainiv 
tion.  The  formal  parts  should  be  brief,  ^''et  explicit,  and 
drawn  with  great  care,  particularly  the  examiner's  certifi- 
cate, for  it  is  this  which  imparts  to  the  abstract  its  value  as 
evidence. 

§  5.  Tlie  Caption.  The  object  of  the  caption  is  to 
definitely  describe  the  subject  of  the  examination.  It  is  the 
practice  of  Eastern  abstract  makers,  following  the  English 
precedents,  to  insert  here  the  name  of  the  person  for  whom 
the  search  is  made,  and  frequently,  to  describe  the  abstract 
itself  as  the  exemplification  of  the  title  of  some  particular 
individual.'     But    this    is   usurping   the    province   of    the 

'Gee  Curwen  on  Abstracts,   38;  AVillard  on  Conveyancing,  551. 


COMPILING    THE    ABSTRACT.  95 

examining  counsel,  "wlio  alone  should  say  where  and  in  Avhon-i 
the  title  rests,  and  that  only  after  a  careful  and  diligent 
inquiry  into  all  the  questions  raised  by  the  abstract,  directly 
and  inferentially.  The  woiic  of  the  examiner  is  to  }3resent 
to  counsel  all  that  appears  of  record  concerning  a  specified 
tract  of  land;  no  more.  The  counsel  must  say  in  whom, 
under  the  application  of  legal  principles,  the  title  rests.  The 
caption,  therefore,  should  consist  of  a  full  description  of  the 
p  ircel  or  parcels  of  land  under  examination,  and  the  time 
from  which  the  search  is  made.  The  following  is  the  I'onu 
of  an  ordinary  caption : 


EXAMIXATIOX   OF   TITLE 

to 

Lnf  Five  (S)  of  EIocl'  Four  (4)  of  BoncTs  Suhdivision  of  the 
Xorth  E(Mt  quarter  of  Section  Twenty-Three  {23)  Town 
Thirty-Seven  {37)  JVjrth,  Range  Thirteen  {13)  East  of  the 
Third  Principal  Meridian;  except  the  South  one  hundred 
acres,  and  also  one  acre,  in  the  Worth  West  corner  of  East 
one  half  {^)  of  said  quarter  section,  deeded  to  the  School 
Commissioners. 


Descriptions  of  platted  lands  are  frequently  confined  to 
the  record  title  of  the  plat,  which  fails  to  provide  a  full 
designation,  and  the  description  tlius  emjiloyeil  in  the  deeds 
is  also  used  in  the  caption  of  the  al>stract.  AVhen  such  is  the 
case  it  is  a  good  plan  to  further  indicate  the  location  of  the 
property  with  reference  to  the  original  division,  thus: 

Suh- Block  Three  {3)  of  Block  Four  (4)  of  Sh.Jfi^hrs  Addi- 
tion to  ChicofjOy  Cook  County,  Ills. 

The  premiHf'H  in  question  are  located  ujton  the  North 
half  of  the  North  East  quarter  of  Section  3,0,  Town  JfO 
North,  liamje  IJf  East  of  the  3d  J^rincipal  Meridian. 

So  uLs<j,  it  may  happen  that  a  subdivision  is  laid  out  on 


DG  A15STKACTS    OF    TITLE. 

several  p.?rcolr.,  in  wliich  case  it  may  be  deemed  desirable  to 
slu)U'  the  particular  parcel  in  Avhich  the  lots  under  exaiui na- 
tion are  hx-ated.  Tiie  caption  would  therefore  vary  a  little 
from  that  last  shown.     As  for  exmnplo: 

Lot  Four  (.f)  in  Block  Two  {2)  in  JRocJ^welV s  Addition  to 
Chicago,  Cook  County,  Ills. 

Said  addition  is   laid   ont  on  the  West  half  of  the  North 

West  qiiarter  of  Section  18,  Town  30  North,  Range  IJp  East 

of  the  3d  Principal  Meridian,  and  the  North  East  qvarter  of 

Section  13,  Town  30  North,,  Range    13  East  of  the  3d  Princi- 

pal  Meridian. 

The  Lot  in  question  falls  loithin  the  North  East  quarter  of 
Section  13  aforesaid. 

"Where  the  early  stages  of  title,  prior  to  the  subdivision, 
are  shown,  the  foregoing  method  often  becomes  a  great  help 
to  counsel  in  examining  the  abstract. 

Should  the  examination  be  a  continuation  of  a  former 
search,  the  words  "  Continuation  of"  may  be  placed  at  the 
beginning  of  the  caption,  preceding  the  word  "  Examina- 
tion." 

"Where  the  examination  commences  at  the  source  of  title, 
as  where  a  devolution  from  the  United  States  is  shown, 
no  announcement  of  the  time  from  which  the  search  dates 
is  necessary,  but  when  any  intermediate  point  is  selected, 
it  is  customary  to  indicate  same.  This  is  accomplished  by 
a  simple  statement  of  the  fact  immediately  folloA\'ing  the 
description,  and  neatly  separated  from  what  precedes  and 
follows  by  dashes,  thus : 


Commencing  this  examination  Oct.  0,  1S71. 


The  certificate,  when  properly  drawn,  will  always  indicate 
the  respective  dates  covered  by  the  examination,  but  many 
examiners  prefer  to  indicate  these  facts  in  advance,  and, 
when  such  is  the  case,  the  time  clause  should  read  so  as  to 
show  the  tennination  as  well  as  the  commencement  of   the 


COMPILING   THE   ABSTRACT,  97 

search,  "\rhcn  the  examination  is  partial,  and  does  not 
come  down  to  inchide  present  time,  this  method  is  recom- 
mended.    Such  time  chiase  might  read  as  follows : 

Commei-tchig  this  examination  Oct.  9,  1871,  and  hringing 
the  same  down  to  include  Sept  7,  187 J^.. 

'Where  the  examination  includes  several  distinct  parcels, 
and  the  search  does  not  cover  the  same  period  of  time  as  to 
all  of  the  parcels,  this  fact  should  be  indicated  at  the  start; 
thus  : 

As  to  Lots  13  to  16  inclusive,  in  BJoch  5,  loe  hring  our 
examination  down  to  include  March  3,  1886. 

As  to  the  remainder  of  said  j)?'emises  we  bring  our  examina- 
tion down  to  include  the  date  hereof. 

In  case  of  a  continuation  of  a  former  soarcli  the  time 
clause  should  read  somewhat  as  follows : 

Last  examination  made  l>ij  us  dated.  Jfarch  3,  1879. 

or  should  the  search  have  been  made  by  a  different  examiner. 

Last  examination  made  l>y  Handy,  Simmons  d;  Co.,  dated 
June  7,  1880. 

It  sometimes  ha]ipens  tliat  tlie client  only  desires  a  search 
fr<;)m  some  ])articular  time',  and  selects  some  jxirticular 
instrument  as  the  basis  of  his  title.  In  this  case,  the 
instrument  selected  should  foi-m  the  initial  number  of  the 
abstract,  and  the  time  clause  shmild  read  substantially  as 
follows  : 

We  nssii III'',  hj  direction,  that  John  Smith  (trquir.d  the 
title  to  the  fee  of  the  premises  described  in  the  caption  hereto^ 
on  the  10th  day  of  Ajirll,  1X73,  by  th>  instruiiunt  shoion  as 
nujnher  one  of  this  examination. 

Frequently  theexamincr  will  bi-  called  upon  for  the  partial, 
7 


OS  ABSTRACTS    OF    TITLK. 

or  sjxvial  examinations,  cither  of  land  or  concernino:  indi- 
vidiuils,  in  which  case  the  caption  sliould  explicitly  state  all 
the  [)oints  covered  by  the  examination,  and  if  necessary,  for 
greater  certainty,  negative  such  as  are  not;  as 

Special  Examination 
for 

Judgments  and  Pending  Suits  in,  t/ie  Circvit  and  Supe- 
rior Courts  of  Cook  County^  Illinois,  against  George  P.  Will- 
iams and  John  P.  S/nith.  Judgments  against  Joltn  Smith 
disregarded. 

Examinations  for  special  conveyances,  for  real  estate 
standing  in  the  name  of  judgment  debtors,  for  taxes,  etc., 
should  be  treated  in  the  same  general  manner. 

"Where  the  examination  is  confined  to  the  elucidation  of  a 
single  issue,  it  becomes  more  properly  an  abstract  of  the 
particular  point  under  consideration,  and  is  so  denominated; 
as, 

Ahstract 
of 

A  Tax  Title  to  in-Jot  tv^entyfour,  of  the  original  j>lat  of 
the  village  of  Edgerton,  Green  county ,  Wisconsin,  acquired 
iinder  and  hj  virtue  of  a  sale  made  May  10,  1S79,  for  the 
taxes  of  1S7S. 

§  6.  Arrangement  of  the  Al>stract.  The  difTerent 
conveyances  and  stages  of  title  are  usually  shown  in  chrono- 
logical order  so  as  to  present  as  far  as  possible  a  connected 
chain,  and  numbered  seriatim  from  the  beginning.  Many 
examiners  show  the  deeds  and  grants  collectively,  while  the 
mortgages  and  liens  are  grouped  together  in  the  same  man- 
ner under  a  classified  head.  This  arrangement,  though 
widely  used,  is  inconvenient  and  frequently  distracting  to 
counsel.  The  liens  and  incumbrances  when  connecting  title 
should  be  set  forth  in  re^rular  chronological  order  in  con- 


COilPILIXG    THE    ABSTRACT.  99 

junction  with  other  instruments,  and  releases  or  discharges 
should  immediately  follow  the  incumbrance  or  lien  which 
they  purport  to  affect  irrespective  of  the  time  they  bear 
ilate.  The  aim  of  the  examiner  should  be  to  present,  so  far 
as  may  be,  the  course  of  title  in  unbroken  sequence  through 
whatever  forms  or  instrumentalities  it  may  pass.  Judg- 
ments (against  the  person),  taxes  and  tax  sales,  may  be 
shown  after  the  course  of  title  has  been  traced,  in  the  shape 
of  appendices  and  under  appropriate  heads.  Decrees,  judg- 
ments, orders  affecting  the  land  and  tax  deeds,  of  course  ap- 
pear in  regular  order  in  the  body  of  the  abstract.  Official 
deeds,  resulting  from  execution  or  judicial  sales,  should  be 
preceded  in  the  former  case  by  the  judgment,  in  the  latter 
hy  the  special  proceedings  and  decrees  upon  which  they  are 
founded. 

As  a  further  aid  in  effecting  a  correct  and  systematic  ar- 
rangement of  the  instruments  shown  in  an  examination,  an 
illustration  in  the  form  of  a  chain  is  herewitli  given.  This 
title,  Avhile  it  would  present  but  few  difficulties,  is  yet  suffi- 
ciently intricate  to  explain  the  method. 


EXAJ/IXATIOX,  OF  TITLE 

to 

The  N.  E.  I  Sec.  10,  T.  1  N.,  li.  es  E 


1. 

r.  S.  In  A} 

P<itrnt 

All 

Avq. 

1, 

1S30. 

() 

A.  to  Ji. 

Jhrd 

All 

Dec 

15, 

1S39. 

3. 

B.  to  0. 

Deed 

All 

June 

10, 

IS.'fS. 

;. 

C.  to  JJ. 

JJeed 

All 

Miti/ 

o, 

1S50. 

h.     D.  to  G.                T>eed  Und.  \  June       /,  ISoO. 

G.      a.  t>>  II.                  JJcijd  Und.  i  Aj>rd  11,   iSoo. 

'Tin.'   iihove    illustration    is    for  opsis  of  cvitv  iiislniim  nt  nml  jiro- 

arr!in««'infnt    only:  of   fotn-s<'.  in  cfv<liiig  iniut  be  gi\<  i 
coMi|iilin;;  Iho  aliHtrart,  a  full  syii- 


]U0  ABSTRACTS  OF    TITLE. 

7.  />.  to  E.               Deed  Unci.  |  Juhj     £?,  lSo2- 

8.  E.  to  F.              Deed  TJnd.  \  Sept.    12,  1863. 

9.  F.  to  11.              Deed  TJnd.  ^  April  11,  1850. 


10. 

U.  to  M, 
State  to  L 

Deed 

All 
All 

Oct.       8, 
Jfarch  1, 

1850. 

11. 

Tax  Deed 

1850. 

12. 

I.  to  J. 

Quit  Claim 

All 

Jan.       2, 

1851. 

13. 

J.toK 

Deed 

All 

May    15, 

1851. 

u. 

K.  to  L. 

Deed 

All 

Feb.     m. 

1857. 

15. 

L.  to  M. 

Deed 

All 

Oct.       8, 

1850. 

10.    M.  to  ]Sr.  Deed  All        ^^ol\     1,  ISGO. 


Judgments. 


Tax  Sales. 


Examiner'' s  Certificate  of  Search. 

The  foregoing  sketch,  though  hricf,  conveys,  in  some 
measure,  an  idea  of  the  arrangement  of  a  chain  of 
title.  From  Nos.  1  to  4  the  divestiture  of  the  title  from  the 
government  and  its  devolution  through  mesne  convcN'ances 
is  regular  and  without  interruption.  At  No.  5  the  owner- 
ship of  the  land  changes  from  severalty  to  common,  an  un- 
divided one  half  being  vested  by  No.  G  in  II.  As  11,  in  the 
devolution  of  title,  subsequently  becomes  invested  with  the 
remaining  one  half,  a  stop  should  be  made  at  this  point  and 
the  title  to  such  remaining  one  half  traced  until  it  again 
becomes  merged  in  H.  This  is  accomplished  in  No.  9.  The 
reunited  title  should  then  be  distinguished  from  what  has 
preceded  by  a  short  dash,  and  the  next  conveyance,  No.  10, 
should  form  another  initial  point,  from  which,  if  no  other 


COMPILING    THE    ABSTRACT.  101 

obstacle  intervened,  tlie  cliain  would  be  continued.  But  dur- 
ing the  devolution  of  the  original  title  a  tax  title  has  been 
created  by  a  grant  from  the  State.  This  title  is  independ- 
ent and  adverse,  and  if  tliere  should  be  no  subsequent  mer- 
ger would  be  properly  shown  after  the  original  title  had 
been  fully  traced.  In  the  illustration  this  title  is  afterward 
acquirotl  by  M,  therefore,  as  he  now  owns  the  original  title, 
such  tax  title  should  at  this  point  be  traced  to  him.  A 
broad  dasli  should  therefore  separate  the  chair  and  the 
course  of  the  tax  title  should  be  followed  until  M  receives 
the  investure,  which  is  accomplished  in  JS"©.  15.  Here  the 
broad  dash  is  again  employed  to  separate  the  tax  title 
from  the  original,  and  the  full  and  reunited  course  is  con- 
tinued in  the  deed  from  M  to  iST.  The  judgments  and  tax 
sales,  if  any,  follow  as  special  appendices. 

An  abstract  thus  arranged  greatly  lessens  the  labors  of 
counsel  in  preparing  an  analysis,'  and  by  reason  of  its  co- 
herency presents  most,  if  not  all  of  its  salient  features  on 
perusal. 

§  7.  Synopsis  of  the  Instruments.  In  England  al)- 
stracts  are  prepared  after  a  uniform  sj^stem  which  has 
long  been  observed  by  the  conveyancers  of  that  country,  and 
the  im})ress  of  which  is  plainly  discernible  in  many  portions 
of  the  United  States.  It  is  very  methodical  and  precise,  and 
in  view  of  the  differences  in  the  sources  of  information,  as 
well  as  the  information  itself,  and  of  the  elfect  which  many 
f)f  the  matters  tliere  required  to  be  shown  have  upon  title, 
is  perhaps  highly  conducive  to  the  end  desired,  yet  after  all 
it  is  more  a  matter  of  ])recedent  and  the  observance  of  estal)- 
lished  forms  than  of  real  utility.  Should  the  taste  of  the 
examiner  so  incline,  or  counsel  so  (liceet,  the  instruments 
may  be  displayed  after  the  Kiiiilish  model,  which  is,  brielly, 
as  follows : 

The  abstract  is  usually  wi-itten  on  "  brief"  ]):i|)er,  which  is 
divid(;d  by  three  real  or  imaginary  longitudinal  lines,  thus 

'  As  an  inHt.incp,  an  nnalvHis  of  Btnift  is  ^ivon  in  g  10  of  Cliap. 
the  title  shown  by   tlie  uix)vo  ul>-      XXXII  of  tliis  work. 


Id-'i  ABSTRACTS    OF   TITLE. 

leaving  a  page  with  four  divisions  wliicli  arc  technically 
known  as  ''  margins."  The  outer,  or  left  hand  margin,  is  left 
clear  for  the  person  investigating  the  title  to  insert  any  note 
or  intended  inquiry  which  may  suggest  itself  during  the 
lierusal  of  the  abstract,  or  it  may  sometimes  be  used  by  the 
abstract  maker  for  the  insertion  of  a  note  or  statement 
necessary  to  a  proper  display  of  the  title.  The  ca})tion  is 
written  from  the  third  margin.  The  description  of  the  parties 
as  well  as  the  testatum  is  usually  written  from  the  outer 
margin.  The  parcels,  that  is  the  descriptions  of  the  property, 
are  invariably  set  out  from  the  third  inner  margin.  The 
habendum  is  most  frequently  written  from  the  second  inner 
margin,  while  the  recitals  are  almost  invariably  written 
from  the  (irst  inner  margin.'  This  method  undoubtedly  pos- 
sesses some  advantages,  the  chief  merit  being  that  it  enables 
counsel  at  a  glance,  to  refer  to  any  portion  of  the  instrument 
without  having  his  attention  diverted  to  other  parts,  and  the 
facility  it  affords  to  comparison  of  instruments  when  deter- 
mining their  operation  and  effect  Avhen  construed  in  relation 
to  each  other;  but  aside  from  this  it  is  difficult  to  perceive 
any  particular  inducement  for  the  adoption  of  the  marginal 
system. 

The  form  of  synopsis  recommended  by  the  writer,  and  of 
which  the  succeeding  illustrations  afford  numerous  examples, 
is  exceedingly  simple  and  unartificial.  It  consists  merely  of 
an  arrangement  not  unlike  the  pleadings  in  a  law  suit;  that 
is.  a  caption  reciting  the  parties  to  the  transaction  or  the 
nature  of  the  transaction  itself  in  practicable  cases,  followed 
by  a  plain  narration  of  whatever  matter  may  be  deemed 
essential.  The  caption,  for  greater  ease  in  perusing  and 
comparing,  is  placed  at  the  left  hand  side  of  the  page  and 
united  with  a  bracket,  or,  if  desired,  may  be  written  over  and 
across  the  narration  which  follows.  All  the  recitals  are 
written  across  the  entire  page  and  not  otherwise  distinguished 

'  Seaborne  on  Vendors,  4  et  seq.  work,  an  example  illustrating  the 
As  this  matter  receives  freqnent  methods  will  be  found  in  the  appen- 
allusions  in  different  parts  of  this      dix. 


COMriT.IXG    THE    ABSTRACT.  103 

from  each  other  than  by  being  thrown  into  paragraphs.  In 
case  of  notes  a  slight  indentation  is  desirable  to  more  fully 
distinguish  them  from  other  matter,  but  "with  this  exception 
all  writiniT  hatl  better  be  made  from  the  ruled  margin  of  the 
sheet.  This  method  has  long  been  pursued  by  the  abstract 
makers  of  the  AVest,  where  it  is  conceded  the  most  perfect 
and  finished  abstracts  are  ]n'oduced,  and  has  met  the  general 
approbation  of  the  legal  profession  upon  the  examination  of 
their  work.  • 

§  8.  Fiilliioss  ot'Narratioii.  From  what  has  been  said,  it 
will  appear  that  a  full  and  complete  narration  of  every  in- 
strument, proceeding  or  act,  shown  in  the  abstract,  is  neces- 
sary to  a  complete  and  perfect  examination,  ^fany  things 
of  no  seeming  moment  to  the  examiner,  may,  to  the  trained 
eye  of  counsel,  be  a  circumstance  of  vital  importance.  "While 
the  abstract  is  not  intended  to  be  a  copy  of  what  is  shown, 
it  should  yet  be  sufficient  to  impart  all  the  information  that 
miglit  be  obtained  from  a  perusal  of  the  originals.  It  is 
not  necessary,  save  in  exceptional  cases,  that  it  should  be  a 
literal  transcript  of  every  point  or  matter  deemed  material 
or  essential,  for,  on  the  contrary,  tlie  majority  of  these  mat- 
ters will  be  more  clearly  and  pertinently  presented,  bv  a 
brief  and  succinct  statement  that  shall  fully  cover  the  ]^ar- 
ticular  point,  divested  of  its  redundancy  and  unnccessarv 
verbiage.  It  is  tlie  object  of  tlie  abstract  to  economize 
time,  and  enable  the  reader  to  survey  the  entire  course  of 
title  c<»m]»aratively  at  a  glance.  Hence,  long  and  technical 
]ti'f)visions  should,  whenever  ]>racticabl3,  be  digested  so  as 
to  show  their  i)ith  and  substance,  v/liicli,  in  many  instances, 
may  be  done  without  in  any  manner  impairing  the'r  signif- 
icance. The  faculty  of  condensation  sl'.oulil  be  cultivated 
by  all  who  would  asi)ire  to  <'X('«'ll('nce  in  the  )>repaia(ion 
of  abstracts,  for  nothing  more  distinguishes  the  acconi|)lished 
and  expert  examiner,  an<l  the  woric  is  always  duly  n-cog- 
ni/.<'d  and  ap|ir<ciated  by  counsel.  These  I'eniarKs,  howevei-, 
a|>|>ly  mainly  to  the  general  and  not  to  the  s|)eti;d  incidents 
of  instruments,  for  those  latter,  asa  ndr.  e.ni  lie,t  he  presented 
in  the  language  of  the  originals,  and  to  avoid  erroi-  ov  oiuis- 


lU-i  ABSTRACTS    OF   TITLE. 

sion  slioukl  ordinarily  bo  so  shown.  Tlius,  a  general  recital 
is  far  better  ])resented  as  a  terse  and  succinct  statcnient,  but 
]n"ovisions  peculiar  to  the  instrument  must  be  fully  stated 
or  literally  copied,  for  it  must  ever  be  borne  in  mind,  that 
where  one  is  chargeable  with  the  notice  of  the  record  of  an 
instrument,  he  is  equally  affected  with  notice  of  all  recitals 
contained  in  such  instrument.' 

§  0.  Examiner's  Notes.  It  is  the  custom  of  many  ex- 
aminers to  freely  intersperse  through  the  examination  their 
own  comments  and  observations  relative  to  matters  therein 
statctl.  When  properh'  inserted  these  notes  are  of  immense 
advantage  in  arriving  at  a  proper  estimate  of  the  instru- 
ments shown,  and  in  determining  their  character  and  the 
degree  of  importance  to  be  attached  to  them.  From  his  i)e- 
culiar  position,  knowledge  of  the  records,  and  control  of  in- 
dices and  references,  the  examiner  is  frequently  in  possession 
of  information,  which,  though  not  strictly  essential  to  the 
abstract,  and  in  a  certain  sense  aliunde,  is  3'et  a  valuable 
contribution  and  may  obviate  many  perplexing  questions 
that  might  otheru'ise  arise  on  its  perusal  by  counsel.  This 
information  should  be  apjK'ndcd  in  the  shape  of  explanatory 
notes.  They  should  be  brief,  concise,  and  confined  strictly 
to  a  statement  of  facts.  Queries  (save  in  rare  instances), 
opin.ions  and  desultory  suggestions  only  serve  to  confuse  and 
distract.  When  alluding  to  any  particular  instrument  or 
l^rocecding,  they  should,  when  practicable,  immediately  fol- 
low the  particular  conveyance  referred  to,  or  should  this  be 
undesirable,  may  be  placed  at  the  end  of  the  abstract,  imme- 
diately before  the  certificate,  by  way  of  appendix.  It  is  not 
a  good  plan  to  encumber  the  abstract  Avith  a  profusion  of 
notes,  yet  in  no  case  where  the  matter  stated  is  important, 
or  necessary  to  a  better  understanding  of  what  has  ])reccded 
or  may  follow,  should  they  be  omitted,  and  when  doubtful 
of  the  propriety  of  their  insertion,  it  is  better  to  err  on  the 
side  of  safety,  even  at  the  cost  of  being  prolix. 

§  10.  Irregular  Instruinents.  In  compiling  the  ab- 
stract, the  irregular  index  should  be  as  carefully  consulted 

•  Kcrfoot  V.  Cronin,  lOo  111.  CC9. 


COMPILIXG    THE    ABSTKACT.  105 

as  the  index  of  lands,  cand  not  only  should  this  index  show 
every  independent  instrument  of  an  irregular  character,  but 
also  references  to  other  instruments  duly  posted  in  the  tract 
index,  when  by  reason  of  anything  therein  contained  or 
appended  thereto,  light  may  be  shed  upon  examinations  in 
which  they  do  not  properly  appear.  Thus,  an  alUdavit  of 
pedigree,  domestic  condition,  etc.,  may  be  appended  to  a 
deed  of  specilic  lands  which  is  duly  ])osted  in  the  tract  index, 
l)ut  as  this  affidavit  may  have  an  equally  important  bearing 
upon  the  title  to  other  lands,  it  must  also  be  posted  in  the 
irregular  index  for  easy  reference. 

§  11.  Abbreviations.  In  preparing  his  notes  and  arrang- 
ing his  books,  the  examiner  will  find  his  labors  greatly  accel- 
erated by  the  use  of  abbreviations.  These  may  include  not 
onlv  tlie  commonlv  accei^ted   initials  i'or  the  points  of  the 

.     »      •  * 

comj^ass.  dilferent  classes  of  conveyances,  etc.,  but  all  such 
abbreviated  foi"ms  or  contractions  as  to  himself  may  have  a 
definite  meaning.  In  the  abstract,  however,  everything 
should  be  written  out  in  full,  for  it  can  not  be  ki:!)\vn  into 
whose  hamls  it  may  com3,  and  arbitrary  forms  and  abbrevia- 
tions that  to  the  examiner  appear  extremely  lucid  may  cause 
much  annoyance  and  inconvenience  both  to  counsel  and  non- 
j)rofessional  readers.  The  examiner  should  never  attem])t  to 
supply  the  deficiencies  of  the- conveyancer  by  Avriting  out  in 
the  abstract  his  abbreviations  in  the  deed,  but  whenever  such 
occur  the  better  way  is  to  make  a  literal  transcrijjtion  of  the 
abbreviated  words  or  passages,  arid  certify  same  with  quota- 
tion marks,  thus  :  "  Sec.  14,  T.  ^0,  Range  13  E."  The  ques- 
tion of  interpretation  will  then  rest  where  it  rightfully  be- 
longs— v.'ith  counsel  who  is  to  ])ass  on  the  title.  A  deed  is 
not  invali<l  ix'canse  of  the  description  of  the  lands  being  in 
liguresor well  underst<jodabl)i'eviations,'  but  abstracts  which 
are  unintelligible  without  theaid  of  some  ]»i*oof  to  explain  the 
moaning  of  abbreviations  and  iiiilials  used  in  them,  when 
permitted  to  be  us(.'(l  as  evich-iicc,  are  insuflicient  in  (hcni- 
sclves  to  establish  tith'." 

'  HaniiiK'ton '•  I'i  lilnMi,),   .11.",.  '  W. •.■!>,  ,>.  DuwiiiLr.  :;ii  Mi, h.  1. 


100  ABSTRACTS    OF    TITLE. 

§  12.  Loitor  Tross  Copies.  Xo  abstract  or  exaniinntion 
should  be  permitted  to  leave  the  maker's  hands  until  a  dupli- 
cate letter  press  copy,  or  its  equivalent,  has  first  been  ol)- 
tained.  The  examiner  should  always  have  in  his  own  posses- 
sion the  verificationof  his  work  as  a  matter  of  self-protection, 
while  in  case  the  volume  of  business  passing  through  the 
olUces  of  registration  is  such  as  to  preclude  making  full 
minutes  in  the  first  instance,  the  copies  thus  obtained  will 
supply  the  deficiency,  and  be  available  for  future  examina- 
tiojis  of  the  same  property,  without  the  labor  of  again  refer- 
ring to  the  records.  This  may  be  accomplished  by  noting  on 
the  tract  index  opposite  tlie  reference  of  the  instrument  in 
question  the  volume  and  page  of  the  copy  book  on  which  the 
full  abstract  is  preserved. 

§  13,  Coiu-lading  Certificate.  The  result  of  the  exami- 
ner's labors  shouhl  be  summed  up  in  conclusion,  by  a  brief 
recapitulatory  and  explaiiatory  certilicate,  cmbod3dng  the 
essential  features  of  the  search.  Its  extent  is  o})tional  with 
the  examiner,  but  it  should,  to  give  stabil ity  to  the  abstract, 
cover  Lis  scarclics  in  the  oiiices  of  registration,  the  courts, 
and  depositories  of  records  relative  to  taxation,  these  throe 
sources  of  inConnation  furnishing  nearly  all  the  evidence 
required  in  passing  on  the  sulliciency  of  the  title.  It  should 
be  certain  in  its  statements,  leaving  nothing  to  im]ilication, 
and  co]itain  no  more  than  is  developed  by  actual  investiga- 
tion. If  the  examination  is  made  from  the  records  it  should 
so  state,  enumerating  the  ditferent  classes  examined,  or  de- 
scribing the  otRces  or  de]")ositories  from  which  the  informa- 
tion was  obtained,  but  where  it  is  made  from  indices,  kept 
by  the  examiner,  it  is  usual  to  certify  from  such  indices,'- 
which  is  a  much  safer  plan  than  to  certify  from  the  records. 
It  should  be  signed  by  the  examiner  and  dated,  such  date 
being  usually  the  date  of  the  examination.  The  annexed 
form  of  certilicate  will  cover  the  points  investigated  in  an 
ordinary  search : 

'As  a  fm-ther  precaution  the  sires,  of  wliich  the  following,  taken 
client  is  usually  required  to  make  from  actual  practice,  is  an  exam- 
a  sjucific    order,   stating  his  de-      pie : 


COMriLING    THE    ABSTRACT. 


lo; 


We  have  examined  our  Indexes  to  records  in  Coolc  coujtty, 
Illinois,  and  jind: 

Ko  conveyances  of  the  premises  described  in  tlie  caption 
hereto,  executed  ly  any  of  the  parties  named  herein  as  ijrunt- 
or  or  grantee,  shown  thereby  to  have  been  recorded  in  the  Rc- 
corder'^s  office  of  said  Cook  county,  Illinois,  since  January 
Qo,  lS7o,  and  prior  to  this  date,  except  as  shown  on  the  ten 
{10)  preceding  sheets.^ 

jVo  judgments  rendered  in  any  court  of  record  in  said 
Cook  county,  Illinoi'^,  against  John  M.  Smith  since  October 
25,  1S72,*  and  prior  to  March  2,  1880,^  nor  against  Williani 
Thompson  since  October  25,  1872,  and  prior  to  this  date, 
which  are  a  lien  on  said  premises  [or  which  we  consider  liens 
on  said  premises']. 


No. 


ORDER  FOR  EXAMINATION  OF  TITLE. 


Chicago, ISS 

HADDOCK,  VALLETTE  &  RICKCORDS, 

Make  an  examination,  according    to  your  Indexes  to  the  Reeords  in 
Cook  Coiintj',  Illinois,  of  deeds,  judgments  and  tax  sales,  of  the  title  to 
the  following  described  land,  in  Cook  Covmty,  Illinois  : 
(Here  insert  the  description  of  tlie 


property.) 


(Signed) , 


'  Although  the  examiner  may 
only  certify  that  he  Jbida  no  eon- 
veyanct«,  yet  this  is  eijuivalent  to 
a  statement  that  none  exist.  Mc- 
Coraher  v.  Commonwealth,  5  Watts 
&  S.  (Pa.)  21. 

*Tliis  date  has  reference  only  to 
the  time  from  which  a  pei-sc^iial 
judgment  is  a  lien  on  n>nl  estate 
and  not  to  the  comm*  ncement  of 
the  examination.  In  Illinois  the  lien 
only  exists  for  M<ven  years,  hence', 
with  refen-nre  to  the  <late  of  the 
«(Ttifi<at4'.  OrUihcr  25,  IHT.'i,  would 
have    been    a.    proper    diitc    fiuiii 


No Street. 

whicli  to  certify  judgments,  but  in 
a  majoi-ity  of  the  States  the  jjirioil 
is  ten  yeai-s,  which  corresponds  to 
the  illustiation  above  given. 

^Tliis  would  be  the  date;  wJien 
John  M.  Smith  disposed  of  the 
title,  and  hence  no  «'xaminatioii 
would  be  made  coiK-eniing  him 
afl«  r  that  datv.  William  Tliomp- 
non,  though  only  h(ilding  titlea  lit- 
tle over  two  y«'ars,  muhlyet  beeer- 
tifif^l,  as  against  judguutits,  for  i'. 
p(  riod  i'i|U.il  to  the  statutory  limi- 
taliiin,  which,  in  the  exam[ilc,  is 
t<M  yeans. 


lOS  ABSTRACTS    OP    TITLE. 

Note. — i\'^<9  examination  made  for  judgments  agaln,st  John 
Smit/i,  nor  against  John  Smith  with  middle  initial  other  titan 
"J/." 

No  taxes,  or  tax  sales,  or  forfeitures  of  said  premises,  re- 
ijiaining  unredeciioed  or  uncanceled  of  record  {excejjt  as 
shown). 

Ihuldocl^,  VaUtttc  d;  Rlchcords, 

Examiners. 
Chicago,  Ocloler  25,  1SS2. 

If  the  examination  commences  with  the  assumption  of 
title  in  a  given  person,  the  certiticate  shoukl,  for  the  better 
])rotecti(m  of  the  examiner,  specify  such  person  by  name 
and  the  statement  of  conveyances  might  read  something  like 
tlie  following: 

No  conveyances  of  the  premises  described  in  the  caption 
hereto,  executed  hy  John  21.  Smith,  shoum.  thereby  to  have  been 
recorded  in  the  recorder'' s  office  of  said  Cook  county,  Illinois, 
since  Jan.  25,  1S75,^  and  none  by  those  who  derived  title 
through  said  Smith,  named  in  the  foregoing  exainhiation  as 
grantor  or  grantee,  etc. 

'Tlie  date  of  the  assumption  of  title  and  commencement  of  the 
seaicli. 


CIIAPTEIl   VIII. 


INCEPTION  OF  TITLE. 


1 1. 

Preliminary  stages  of  title. 

§  14. 

2. 

Inceptive  mi-asaies  under  the 

U.  S.  land  laws. 

15. 

3. 

Disposal    of    the  public  do- 

IG. 

main. 

17. 

4. 

Public  land  sales. 

5. 

Private  entry  of  lands. 

18. 

6. 

Kature  of  title  conferred  by 

19. 

entry. 

20. 

7. 

What  lands  subject  to  entry. 

21. 

8. 

Pre-emption  entries. 

9. 

Nature  of  pre-emption  rights. 

22. 

10. 

Conveyances  before  entry. 

23. 

11. 

Graduation  entries. 

24, 

12. 

Donation  entries. 

13. 

Homestead  entries. 

Rights  acquired  under 
homestead  acts. 

Desert  land  entries. 

Tree  claims. 

Location  by  military  war- 
rant. 

Land  scrip. 

Swamp  land  grants. 

School  lands. 

Internal  improvement 
grants. 

Land  grants  to  railroads. 

Who  may  accjuire  title. 

Inceptive  measures  in  the 
abstract. 


§  1.  Preliminary  Staines  of  Title.  All  the  lands  in  the 
Territories,  not  appropriated  by  comi)otent  authority  before 
they  were  acquired,  are,  in  the  lirst  instance,  the  exclusive 
])roperty  of  the  United  States,  to  be  disi)osed  of  to  such  per- 
sons, at  such  times,  in  such  modes,  and  by  such  titles,  as  tlie 
(Tovernment  may  deem  most  advantageous  to  the  ])ublit-. 
Tliis  right  has  been  uniformly  reserved  by  solemn  coinjiact 
uj)on  the  admission  of  new  States,  and  has  always  been  rec- 
ognized and  scrupuhjusly  respecte<l  by  the  States  within 
which  hirge  porticms  of  the  public  hinds  liavo  been  com]ii'is(^d, 
and  within  which  much  of  these  lands  are  still  remaining. 

The  system  adopted  for  tlic  dis])osition  of  the  public  laiitls 
embraces  the  interests  of  all  the  States,  and  proposes  tli<v 

i-i\u;i\  jiarticipation  th<!i'ein  of  all  the) pic  of  nil  IIk;  States. 

The  system  is,  therefore,  i)ecMli;irly  :ind  exclusively  tlie.e.xcr- 

(100) 


llO  AIJSTKACTS    OF    TITLE. 

cisc  of  a  fcdrral  ]i(nver,  and  tlie  inodo  of  its  aocoinplislimont, 
as  well  as  the  evidences  or  numinients  of  i'i<;lit  it  bestows, 
are  all  the  work  of  federal  functionaries,  l^either  State  nor 
Territory  can,  in  any  manner,  interfere  with  the  ])riniary  dis- 
posal of  the  lands.' 

Under  the  land  system  of  the  United  States,  there  are  a 
number  of  preliminary  or  inceptive  stages  of  title  before  its 
final  di vesture  from  the  Goyermnent  and  consummation  in 
the  purchaser.  They  arise  from  the  provisions  of  the  vari- 
ous acts  of  Congress  in  furtherance  of  the  development  of 
the  country,  and  their  recital  forms,  or  should  form,  the  ini- 
tial statements  of  every  abstract,  wlun.n^er  the  examination 
{purports  to  show  a  connected  cliain  of  title  from  its  source, 
the  general  Government.  Where  title,  as  in  the  East,  is 
derived  directly  from  the  State  as  the  original  proprietor, 
these  stages,  of  course,  do  not  appear,  nor  where  tlie  title  is 
deduced  from  ante-revolutionary  governments.  Titles  de- 
rived from  foreign  powers  prior  to  the  acquisition  of  the 
soil  by  the  United  States  are  respected  and  })rotected,  but 
should  be  confirmed,  when  inchoate,  by  special  act  or  in  con- 
formity to  general  laws  on  that  subject,"  the  title  in  such 
cases  dating  from  the  confirmation,  though  relating  back  to 
the  time  of  the  cession  of  the  Territory  to  the  Government, 
or  to  the  original  grant.^ 

§  2.  Inceptive  Measures  Under  the  U.  S.  Litnd  Laws. 
The  public  lands  are  sold  only  by  legal  subdivisions,  made 
in  conformity  with  the  government  system  of  surveys,  and 
title  is  acquired   by  purchase  at  public  sale;   by  ordinary 

'  Irvine  v.  Mai-shall,  61  U.  S.  (20  of  governments  which  held  sover- 

How.)  558.  eignty  over  the  territory  prior  to 

-  United  States  v.  King,  3  How.  its  acquisition,  and  confirmations 

773;  McMicken  v.  United  States,  97  have  been  extended  to  all  claims 

U.  S.  (7  Otto)  204.  founded  on  titles  in  form,  orders 

"  The  policy  of  the  United  States,  of  survey,  and  even  to  premises  to 

in  the  adjustment  of  such  titles  which   no  written   title  had  been 

has  been  one  of  unexampled  liber-  recorded,  where  the  claimants  had 

ality,  reserving  to  claimants  the  made  actual    settlements    before 

lands  to  which  they  asserted  titles  the  change  of  sovereignty, 
derived  from  the  lawful  authorities 


INCEPTION    OF    TITLE.  Ill 

"private  entry; "  aiul  l»y  virtue  of  the  special  enactments  of 
Congress  variously  known  as  the  ])re-eni])tion,  homestead 
acts,  etc.  These  laws  and  regulations  for  the  disjiosal  of  the 
public  domain  apply  only  to  individuals  who  take  direct 
from  government.  Congress  has  also  at  different  times  by 
special  legislation  granted  to  the  States,  or  certain  of  them, 
a  portion  of  the  public  lands,  to  aid  in  the  construction  of 
great  internal  improvements;  to  endow  schools  and  encour- 
age education;  and  for  other  specific  purposes.  These  va- 
rious measures,  for  the  most  part,  are  inceptive  and  initiatory. 
Though  creating  vested  interests,  and  granting  ecjuitable 
rights,'  the  legal  title  still  remains  in  the  original  grantor,' 
to  pass  and  become  absolute  in  the  grantee,  on  the  perform- 
ance of  prescribed  conditions  or  in  due  course  of  law.  A 
brief  review  of  the  preliminary  steps  to  acquire  title  will 
form  the  subject  of  the  succeeding  paragra])hs. 

§  S.  Disposal  of  the  rublic  Lands.  The  public  lands  of 
the  United  States  are  uniformly  brought  into  market  in 
jmj'suance  of  a  s^'stem  wliich  originated  in  the  year  1796' 
and  was  perfected  about  the  year  1820.  They  are  divideil 
into  two  classes,  designated  respectively,  the  minim  ion  at 
81.2.3  per  acre,  and  the  doalne  ininimuw.  at  82.5<>  [)er  acre, 
and  may  be  purchased  (in  legal  subdivisions)  in  tracts  of 
from  40  to  040  iicrcs,  or  in  larger  bodies  if  the  same  can  be 
found  vacant.  In  cases  of  pul)lic  sale  or  private  entry  the 
law  requires  the  price  to  be  paid  in  cash  at  the  tinn^  of  jmr- 
chase.*     For  a  period  of  twenty  years,  beginning  with  the 

'  Stark  V.  Starrs,  (}  Wall.  (U.  S.)  system  for  the  disjiosal  of  tlio  tlien 

402.  existing    western     lan<ls.    and    on 

»  Carman  r.  Johnson.  20  Mo.  108;  May   20,    n^^f),  the   reciuisito  ordi- 

Hawyard  r.  Ormsoee.   11   Wis.   U;  nance  for  tliat  |nn|>ose  was  passed, 

Wilcox  V.  Jackson,  i:}  Pet.  (U.  S.)  by  whicli    the  Board   of   Treasury 

40H.  was   autliorizcd   to  dispose  of   the 

*Tlie  first  treaty  extinpiishing  surveyed    hinds    in    the    western 

the  Indian   title   was  not  effected  U'rritory,    commencint;    sales     at 

until    ITU'i,    hut   not  a    year    had  New   York  or   I'liiladdphia,   with 

eiai>H<-d  from  the  definitive  treaty  power   t<>  adjourn   Id  any   jiart   nf 

of  peace   in   17^^:5  l/efore  the  Con-  tlie  UniU-il  States. 

^•■Hs   of    the   Confederation    t<ii(k  *  See  instriKt  ions,  Se<''y  Interior, 

the   initiative   for    ehtahlisliing    u  Seiit.  10,  1811);  Marcli  10,  INl'J. 


112 


ABSTRACTS    OF    TITLE. 


prosoiit  centiirv,  tlie  lands  were  sold  on  orodit,  at  not  less 
than  S-J. 00  per  acre;  but  the  credit  system  not  Avoi-kin.<jj  sat- 
isluctorily,  in  I81JO  it  was  al)andoned  and  the  price  reduced 
to  $1.25  per  acre.  The  i^2.r>o  per  acre  lands  are  such  as  lie 
within  the  limits  of  railroad  or  internal  improvement  grants. 
Exce])tions  to  these  rules  ai*e  ma<le  under  the  pre-em])tion 
and  homestead  laws,  which  will  l)e  noticed  hereafter.  The 
lands  are  lirst  required  to  be  surveyed,  then  advertised  and 
exposed  for  sale  at  public  auction,  after  which,  what  remains 
is  subject  to  private  entry,  location,  etc.,  at  fixed  prices.' 

§  4.  riiblic  Land  Sales.  The  public  land  sales  are  held 
in  pursuance  of  a  proclamation  by  the  President.''  or  public 
notice  given  in  accordance  with  directions  from  the  General 
Land  Oflice.'  At  this  sale  the  lands  are  offered  at  a  minimum 
price,  and  can  not  be  sold  for  less,  but  may  be  sold  for  as 


'  The  first  method  of  disposal 
w-as  by  olTering  at  public  sale  for 
such  jirice,  above  a  fixed  iiiini- 
iiiuni.  as  the  lands  would  brijig, 
and  after  this  to  purchase  by  pri- 
vate entiy,  on  a  credit  at  a  mini- 
mum in  excess  of  the  lowest  price 
now  admissible  by  law.  In  tlie 
progress  of  events  the  national 
legislature  took  cognizance  of 
actual  settlers,  giving  them  prece- 
dence and  prefi'ivnce  in  the  pur- 
chase of  the  public  lands  antl  re- 
lieving them  of  the  necessity  of 
competing  at  public  auction  with 
ordinaiy  purchasers,  permittx?d 
them,  on  very  liberal  terms  and  at 
the  lowest  price,  to  secure  titles  to 
actual  settlements.  This  policy 
continued  retrospective  until  after 
the  operation  of  the  pre-emption 
law  of  1830,  and  its  supplements, 
and  up  to  the  passage  of  the  per- 
manent prospective  pre-emption 
system  by  the  act  of  Sept.  4,  1841. 
Congress  has  also  dealt  with  lands 
which  had  been  in  the  market  ten 


years  or  longer  by  reducing  these 
to  actual  settlers  at  low  rates,  but 
this  benign  policy  having  led  to 
abuse  and  sjieculation,  Congress 
rescinded  the  law,  yet  not  without 
indicating  a  continued  interest  in 
the  actual  settler  in  passing  the 
homestead  act  of  May  20,  1862,  by 
which  any  citizen  can  secure  a 
farm  comparatively  without  cost. 

'In  the  early  periods  of  tlie 
history  of  the  country,  Congi-ess, 
in  some  cases,  fixed  by  law  the 
times  at  which  public  sales  in  par- 
ticular land  districts  should  be 
held,  and  in  others  directed  the 
sales  to  commence  at  such  times 
as  the  President  should  fix  by  proc- 
lamation. But  by  the  act  of  April 
24,  1820,  regulating  land  sales 
generally,  it  became  the  duty  of 
the  President  to  proclaim  and  offer 
for  sale  all  the  pidjlic  lands  as  they 
might  be  surveyed  and  prepared 
for  market. 

»Rev.  Stat.  U.  S.  §  2353  et  seq. 


INCEPTION    OF   TITLE.  113 

much  more  as  any  one  will  give.  On  payment  of  price  for 
which  the  land  is  sold,  the  Receiver  issues  his  receipt  as  in 
other  cases  and  the  sale  is  noted  on  the  tract  books  of  the 
Kegister.  The  law  limits  the  duration  of  the  sale  to  two 
weeks,  and  in  case  of  a  shorter  period,  private  entries  are  not 
permitted  until  the  expiration  of  that  term.  Only,  com- 
paratively, a  small  portion  of  the  public  lands  are  disposed 
of  by  this  method. 

§  5.  Private  Entry  of  Lauds.  The  term  "  entry,"  as 
applied  to  a]i}u-opriations  of  public  land,  is  said  to  have  been 
borrowed  from  the  State  of  Virginia  where  it  had  been  used 
in  that  sense  from  a  very  remote  period.  It  has  now  a  fixed 
and  definite  signitication  in  the  legal  nomenclature  of  the 
country,  and  means  that  act  by  which  an  individual  acquires 
an  inceptive  v\g]\t  to  a  portion  of  the  unappropriated  soil  of 
the  country  by  iiling  his  a])})lication  for  same  in  the  ofHce  of 
the  designated  land  agents  of  the  Government,  and  is  confined 
to  the  right  to  purchase  at  private  sale.'  The  entry  is  made 
by  presenting  to  the  Register  of  the  district  land  office  a  writ- 
ten application  describing  the  tract  desired,  to  ^vhicli  the 
Register  attaches  his  certificate,  setting  forth  the  fact  of 
such  tract  being  at  the  time  subject  to  private  entry,  aiul 
s|3ecifying  the  price  per  acre.  The  application  is  then  taken 
to  the  Receiver  to  whom  payment  is  made,  and  who  in 
return,  gives  duj)licate  receipts,  one  of  which  is  retained  by 
the  applicant  to  be  surrendered  on  receiving  his  patent;  and 
the  other,  together  with  the  ap])lication,  is  delivered  to  tlie 
Register,  who,  after  ])lacing  the  ajiplication  on  file,  issues 
his  certificate  of  purchase  of  the  land.  Tiie  application, 
accompanied  by  the  Register's  corres])onding  certificate  of 
purchase  is  then  forwarded  to  the  (Jeneral  Land  Office  for 
official  action.'  Patents  do  not  issue  in  the  usual  course  of 
business  in  the  CJeneral  Land  Office  until  several  years  after 
the  entry  has  been  made,  though  conxcyaiices  with  warrantv 

'Cliatarrl  v.  Popo,  12  Wlioiit.  (U.       Stiit.  U.  S..  ^  2'2ir>  ct  srq.;  luxl  si'o 
8.)  nso.  Cir.  Ul-ij.  Luiiil  Oilici-,  Mar.  1,  1SS.|. 

•  1  Lcstor'H  Laml  I«i\vh,  'i\  I ;  IJov. 

8 


114 


ABSTRACTS   OF   TITLE. 


are  freely  made,  and  the  property  frequently  passes  through 
many  hands,  on  the  strength  of  the  inchoate  title  conferred 
by  entry  and  payment.  The  recital  of  this  entry  forms  the 
first  statement  of  the  abstract  of  all  lands  acquired  in  this 
manner,  and  should  be  followed,  whenever  ]iracticable,  Avith 
the  Receiver's  certificate  of  purchase  and  ])ayment. 

§  6.  Nature  of  Title  Conferred  by  Entry.  The  practice 
of  dating  the  legal  title  from  the  date  of  the  entry  is  famil- 
iar in  many  of  the  States,'  yet  nothing  passes  a  perfect 
title  to  public  lands,  with  one  exception,  but  a  patent."  The 
exception  being  Avhere  Congress,  by  special  act,  conveys 
land  in  words  of  present  grant."  Congress  has  the  sole 
power  to  make  and  authorize  appropriations  of  the  public 
lands  *  and  to  declare  the  effect  and  dignity  of  titles  emanat- 
ing from  the  United  States,"  and  the  Avhole  legislation  of 
the  federal  government  in  relation  thereto,  declares  the 
patent  the  superior  and  conclusive  evidence  of  legal  title; 
until  it  issues  the  fee  remains  in  the  government."  The 
entry  can  only  come  in  aid  of  the  legal  title,  and  is  no  evi- 
dence of  such  standing  alone,  when  opposed  to  a  patent  for 
the  same  land.'  But  a  party  who  has  complied  with  all  the 
terms  and  conditions  which  entitle  him  to  a  patent  for  a 
particular  tract,  acquires  a  vested  interest  therein,  and  is  to 
be  regarded  as  the  equitable  owner  thereof,  the  govei-nment 
simply  retaining  the  formal  legal  title  in  trust  for  the  pur- 
chaser until  the  patent  issues.'    The  right  to  a  patent  once 


'  O'Brien  v.  Periy,  1  Black.  132; 
Tidd  V.  Rines,  26  Minn.  201 ;  Bul- 
lock V.  Wilson,  5  Port.  (Ala.)  338; 
Burdick  v.  Briggs,  11  Wis.  126. 

•^3  Opinions  AttyGen.  91;  Car- 
man V.  Johnson,  20  Mo.  108. 

3  3  Opinions  Att'y  Gen.  350;  9  do. 
346;  11  do.  47;  Grignon's  Lessee  v. 
A  to-,  2  Howard,  319;  Challefoux 
V.  Ducharme,  4  Wis.  554. 

■*  United  States  v.  Fitzgerald,  15 
Pet.  407;  Farrington  v.  Wilson,  29 
Wis.  383. 


^Bagrrell  v.  Broderick,  13  Pet. 
436. 

6  Peak  V.  Wendel,  5  Wheat.  293; 
Hooper  v.  Scheinier,  23  How.  235; 
Hay  ward  v.  Ormsbee,  11  Wis.  3; 
Bronson  v.  Kukuk,  3  Dill.  490. 

'  Baird  v.  Wolf,  4  McLean,  549; 
Peak  V.  Wendel,  5  Wheat.  293. 

*  Worth  V.  Branson,  98  U.  S.  (8 
Otto)  118;  Watei-s  v.  Lm'i,  42  Iowa, 
255. 


INCEPTION    OF   TITLE.  115 

vested  is  equivalent,  as  respects  the  government,  to  a  patent 
issued;  and  when  issued  it  relates,  so  far  as  may  be  necessary 
to  cut  off  intervening  claimants,  to  the  inception  of  the 
right  of  the  patentee.'  The  interest  thus  acquired  is  a  recog- 
nized property  which  courts  will  respect  and  protect,'  and  a 
valid  subject  of  sale  or  transfer.'  The  assignment  of  the 
certificate  of  entry  passes  the  equitable  title  to  the  land,*  or 
if  as  collateral  security  creates  an  equitable  lien.'  On  filing 
the  assignment  of  the  certificate  in  the  General  Land  Office, 
patent  will  issue  to  the  assignee  with  the  same  effect  as  to 
the  original  purchaser,'  or  if  issued  to  the  original  purchaser 
he  will  take  onlv  as  trustee  for  the  true  owner.^  Assign- 
ments  are  not  frequently  met  with  on  the  records.  As  a 
rule,  the  early  proprietors  disposed  of  their  interests  under 
the  entry,  by  deed  of  bargain  and  sale,  and  usually  with 
covenants  of  seizin  and  warranty.  The  receiver's  receipt 
was  usuall}''  placed  on  record  as  the  foundation  of  title,  while 
the  patent,  in  the  mutations  through  which  the  pro]>erty 
afterward  passed,  was  overlooked  and  frequently  forgotten.* 
The  effect  of  location  or  entry  in  due  form,  is  to  segre- 
gate the  land  from  the  public  domain  and  subject  same  to 
private  ownership  with  all  the  incidents  and  liabilities 
thereof.  "While  such  location  is  in  force  no  other  can  law- 
fully be  made;'  the  public  faith  has  become  pledged  to  the 

'Stark  r.    Stafrs,   6   Wall.    402;  Lest<Vs  L.   L.  3r>l;  Clark  r.  Ilall, 

Taylor  v.   Brou-n,  5  Cranch,  234;  19  Mich.  3.",6. 

Morrill  v.  Chapman,   a*)  Cal.    88;  'Stark     r.    Mather,    1    Walker 

Astrom  u.  Hammond,  3  McLean,  (Miss.),  181;    Magnuler  r.   Esinay, 

107.  35  Oiiio  St.  221;    Cunningham   v. 

''Gains  i'.  nalo,  26  Ark.  1G8;  Mc-  Ashley,  14  How.  377. 

Ljinc  t".  Bovee,  3.j  WLs.  27.  'Hundreds  of  thousands  of  un- 

'Carrall  v.  Sair<jrd,  3  How.  4G0;  called  for  patents  are  yet  reniain- 

HutchingH  r.  Low,  15  Wall.  88.  ing  in  the  files  of  the  General  and 

*Sillymjin  I'.  King,  30  Iowa,  207;  local     land     offices.      Gen.    Land 

Mi-yere  r.  Croft,  13  Wall.  291;  Bur-  Ofll.e  Rejxirt.  1875, 

dick  V.  Wentworth.  42  Iowa,  440.  *  Simmons  v.  Wagiu  r,   101  U.  S. 

'Wallace  V.  Wiltwjn,  30  Mt).  3:rj.  251. 

*  Inblructiuiib  Secy    Interior;    1 


IIG  ABSTRACTS    OF    TITLE. 

locator  and  any  subsequent  grant  of  the  same  land  would  he 
void,  unless  the  first  location  or  entry  is  set  aside' 

§  7.  'What  Lands  Subject  to  Entry.  Itisafundamontal 
principle,  underlying  the  land  system  of  the  counti'V,  that 
private  entries  are  never  permitted  of  the  public  lands  (un- 
less Congress  by  special  act  order  otherwise) until  after  they 
have  been  exposed  at  })ublic  auction  at  the  price  at  Avhich 
they  are  afterward  subject  to  entry."  "Where  lands  have 
been  surveyed  but  not  exposed  at  public  sale  they  may  be 
obtained  under  the  provisions  of  the  pre-cm])tion  law,  in 
which  manner  nearly  all  the  valuable  lands  in  the  States 
admitted  since  1841,  have  been  taken  up."  Lands  known  as 
"mineral,"  including  deposits  of  the  precious  metals,  coal, 
and  salines,  are  not  subject  to  ordinary  private  entry  and 
are  disposed  of  in  accordance  w^ith  special  acts,*  the  general 
procedure,  however,  being  the  same.  Nor  can  lands  be  en- 
tered Avhich  have  been  reserved  for  any  purpose,  or  other- 
wise withdrawn  from  market.' 

§  8.  Pre-emption  Entries.  As  has  been  shown,  in  the 
earlier  stages  of  our  land  system,  no  right  or  interest  could 
be  secured  by  the  individual  in  any  public  land  until  it  had 
Ijcen  surve3'ed  into  legal  subdivisions;  nor  after  this  had 
been  done  was  it  subject  to  sale  until  by  a  proclamation  of 
the  president,  it  was  brought  into  market.  This  proclama- 
tion always  fixed  a  time  and  place  when  the  lands  within  a 
given  district  were  offered  for  sale  at  publid  auction;  and 
until  all  of  them  were  sold,  which  could  be  sold  in  this 
manner,  at  prices  above  the  minimum  fixed  by  law,  no  one 
could  make  a  private  entry  of  a  particular  tract  or  establish 
a  claim  to  it.  The  scenes  of  violence,  fraud  and  oppression, 
and  the  combinations  which  attended  these  sales,  and  the 
wrongs  perpetrated  under  them,  led  to  the  law  of  p'^e-emp- 

'  Worth  V.  Branson,  8  Otto,  118;  ^^leyers  v.  Croft,  13  Wall.  2'Jl. 

Lytle  V.  Ai-kansas,  9  How.  314;  U.  ^  Act,  July  2Gtli,  18GC. 

S.  V.  Fitzgerald,  15  Pet.  401.  *Hot  Spring  Cases,   92  U.  S.   (2 

'Eldredr.  Sexton,  19  WaU.  189;  Otto)  698;  BeUows  t).  Todd,  39  Iowa, 

do  30  Wis.  189.    See  also  4  Opinions  2UU. 
Att'y  Gen.  167. 


EN'CF.rTIOX    OF    TITLE.  117 

tion.  It  often  occurred  that  emigration,  in  advance  of  the 
readiness  of  the  pnblic  hinds  for  these  sales,  had  caused  hun- 
dreds and  thousands  to  settle  on  tlieni;  and  when  they  came 
to  be  sold  at  public  auction,  their  value  enhanced  by  the 
houses,  fences  and  other  im])rovements  of  the  settler,  placed 
them  beyond  his  reach,  and  they  fell  into  the  hands  of 
heartless  s])ccLdaLors.  To  remedy  this  state  of  things  the 
pre-emption  system  was  established.'  A  "  in-e-emption 
claiiu"  confers  u])on  the  settler  the  exclusive  right  to  pur- 
chase at  a  minimum  ])rice,  the  public  land  of  the  United 
States  upon  which  he  has  settled  in  conformity  to  the  acts 
of  Congress  on  tliat  subject.^  This  polic}''  of  securing  to 
individuals  a  preference  right  to  purchase,  had  its  origin  at 
about  the  commencement  of  the  present  century",  and  at  lirst 
was  confined  to  lands  which  had  been  surveyed,  but  gradu- 
ally this  was  clianged  until  in  18(12,'  pre-emptions  Avere 
allowed,  under  proper  restriciions,  on  unsurveyed  lands  as 
v/ell.  The  laws  on  this  subject  are  numerous,  beginning  as 
early  as  May  10,  ISOO  (which  allowed  pre-emptions  in  the 
country  northwest  of  the  Ohio  river),  and  were  at  first 
restricted  to  particular  classes  and  localities,  until  the  act  of 
September  4,  isH/  and  sui)plemental  act  of  March  3, 1S5;J/ 
which  superseded  all  ])revious  laws  and  now  constitute  the 
general  pre-emption  system."  Under  this  law  the  settler, 
possessing  the  prescribed  rpialifications,  who  enters  upon  the 
public  land,  making  improvements  and  biinging  the  same 
under  cultivation,  and  otherwise  conforming  to  law,  accpiircs 
a  jtrior  and  exclusive  right  to  purchase,  ajid  is  protected  in 
the  enjcjyment  of  his  claim  from  intrusion  or  tres])ass  by 

'  Atlu-rton  t".  Fowler,  G  Olto  (U.  lands  hcforo  tln'y  had  la-en  exposed 

S.),  51:1  to   pulilic   sale..    Tlie   enaetnients 

'  l)illinghani   r.    Fisher,   5  Wia.  j^ranlin^'iire-einption  rij^hts.  i»el'ort.' 

47.").  tliis  time,  wen;  mainly  in  the  na- 

'  12  Stat,  at  Lar{xe,  418.  ture  of  relief  laws,  liy  wjiieh  (res- 

*  5  SUit.  at  Lar^e,  4^»7.  paascM  were  waived,  an«l  u  prcfer- 

*  10  Stat,  at  LarKe,  24  t.  once  wa.s  ^ivt-n  U>  those  who  were 

*  I'rior  Ut  thc!  year  1M|1,  the  Ie;^is-  oeeupyinj;  p>ihli<;  lands  at  theilates 
lation  of  Con^jre^s  had  not  eneonr-  of  tlio  bcverul  lawa. 

Uiiftl  wttlements  ui«in  tin-  piiMie 


118  ABSTUACTS   OF   TITLE. 

others.'  To  fix  the  rights  thus  acquired,  he  is  require;!, 
where  tlie  laud  at  the  time  of  settlement  is  subject  to  private 
entry,  to  file  with  the  Register  a  declaratory  statement, 
describing  the  land  settled  upon,  and  reciting  the  intention 
of  such  person  to  claim  the  same  under  the  provisions  of  the 
pre-euiption  act,  and  within  twelve  months  thereafter  to 
make  proof  of  settlement  and  payment;  failing  in  these  par- 
ticulars the  land  so  settled  or  improved  shall  be  subj(.'ct  to 
the  entry  of  any  other  jierson.  By  the  act  of  May  30, 1SG2,' 
the  pre-emption  claimant  of  unsurveyed  lands  is  required  to 
file  his  declaratory  statement  within  three  months  from  the 
date  of  the  receipt  at  the  district  land  office,  of  the 
ajiproved  plat  of  the  township  embracing  such  pre-emption 
settlement.^ 

§  9.  Nature  of  Pre-emption  Kiglits.  The  right  of  pre- 
em^jtion  attaches  only  to  such  public  lands  as  are  subject  to 
the  operation  of  the  general  land  system  of  the  country,  and 
not  to  those  Avhich  have  been  taken  out  of  the  class  of  pul)- 
11c  lands  and  appropriated  to  specific  objects,  or  reserved  for 
particular  purposes.^  Xo  title  is  conferred  by  the  pre-emp- 
tion laws.  They  give  merely  a  naked  right  to  purchase  and 
acquire  title  within  a  specified  time,  on  compliance  with  cer- 
tain conditions.'  The  settler  acquires,  and  can  acquire,  no 
vested  interest  in  the  land  he  occu})ies  by  virtue  simply  of 
settlement;'  the  land  continues  subject  to  the  absolute  dis- 
posing power  of  Congress  until  all  the  necessary  legal  steps 
to  perfect  an  entry  of  the  land  have  been  taken.'  Before 
this  the  settler  has  nothing  Init  a  contingent,  personal  piiv- 
ilege  to  become,  without  com[)etition,  the  first  purchaser  of 

'Coleman  v.  Allen,  5  Mn.  App.  Cal.  577. 
127,  aiul  see,  Cir.  Gen.  L  lutl  Office,  "^  lU  Opinions  Atf  y  Gen.  5G;  Bur- 
March  1,  1H84.  gess  V.  Gray,  16  How.  48. 

*  12  Stat,  at  Large,  418,  '  Frisbie  v.  Wliituey,  9  Wall.  187; 
3  Megerle  V.  Ashe,  47  Gal.  G32.  Busch  u.  Donohue,  31   Mich.   482; 

*  3  Opinions  Att'y  Gen.  4ij6.  Yoseriiite  Valley  Case,  15  Wall.  77; 
5  Wocjilwanl  r.McReyuokls,2  Pin.  li.  R.  Co.  v.  Tevis,  41  Cal.  489. 

(Wis.)  2G8:  Brown  r.  Tln-ockniorton, 
11  111.  529;   Hemphill  v.  Davies,  38 


INCEPTIOX   OF    TITLE.  110 

the  property,  "wliicli  lie  may  never  exercise,  orAvhich  Lc  may 
waive  or  abandon.  This  right  lias  been  uniformly  held  to  con- 
fer no  present  title  to  the  land,  being  gratuitous,  prospective 
and  contingent;  and  that  the  general  projn-ietor  (the  govern- 
ment) has  a  right  to  reserve  the  kind  from  sale,  to  recall  the 
privilege  previously  conferred,  or  make  any  absolute  grant 
of  the  land  to  other  parties,  with  or  without  consideration.' 
The  interest  acquired  by  a  pre-emption  right  is  not  an  estate 
AWthin  any  definition  known  to  the  common  law,''  and  at  best 
can  be  regarded  only  as  a  right  of  occupancy  with  a  privi. 
lege  (enjoyed  by  no  one  else)  of  purchasing  on  prescribed 
conditions.  It  can  not  be  sold  so  as  to  vest  any  rights  in 
the  land  in  the  purchaser,  and  such  a  sale  would  extinguish 
the  pre-emptioner's  own  right.'  But  should  the  pre-emptor 
die  v^ithout  estal)lishing  his  claim  within  the  period  limited 
bv  law,  his  rights  thus  initiated  are  still  preserved,  and  the 
title  may  be  perfected  by  his  personal  rei)resentatives  or  his 
heirs,  provided  the  entr}'  is  made  during  the  period  in  which 
the  pre-emptor  would  have  been  entitled  to  do  so,  had  he 
lived,  and  patent  will  be  issued  accordingly.* 

§  10.  Conveyances  before  Entry.  The  benefits  of  the 
pre-emption  acts  being  intended  only  for  the  actual  settler, 
are  personal  in  their  ajiplication,  the  12th  section  of  the  act 
of  1S41'  providing  that "  all  assignments  and  transfers  of  the 
right  hereby  secured  prior  to  the  issuing  of  the  patent  shall 

'11  Opinions  Att'y  Gen.  400.  "Rev.   Stat.   U.   S.  6!22G9.     It  is 

'DL-launay  v.   Buniett,  4  Gihn.  impossible  to  state  tlie  niiml)or  of 

(111.)  484.  entries    made  under  the  pre-emp- 

^M<Mjreu.   Jordan,    14  La.  Ann.  tion   laws,  because  the  system  of 

414;  Quinn  V.  Kenyon,  38  Cal.  499;  the  General   Land  OfTiee    carri.  s 

Mor^^an  v.  Curtenins,  4  McLean,  them  into  "cash  entries"  and  tliey 

3CG;    IJrewster  v.  Ma<lden,  lO  Kan.  are  therefore  embraced  in  the  an- 

219;    but  see  I'fiaunay  V.  iiurnett,  nu.il  fash  receipts  from  sale  of  land 

4(»ilm.  (111. )4."»l,rhil|>.s  i'.  Smith,  15  under  various  laws,   liut  it  is  esti- 

111.  572,  where  the  interest  isn^ard-  mated  that  there  has  been  disposed 

e<l  jw  property  which  may  paKs  l»y  of  uiider  the  pre-emption   system, 

dfH'd,  the  pun-hiiser  bciii^re^^arded  wince  its  inaii^cu'ation,  alK)ut  175,- 

OH  the  "  lejral  ri'|«reHentutive  "  of  tho  000.0'HJ  acres, 

original  claimant;    alwj,  UoweiiJ  V.  '5  SUit.  at  Lar^je,  457. 
Ku.s«-her,  14  Iowa,  :S01. 


120  ABSTRACTS   OF   TITLE. 

1);'  null  and  void;"  und  to  })i'evcnt  speculators  from  acquiring 
tiio  land,  the  apj^licant  before  being  allowed  to  enter  same, 
is  reiiuired  to  swear  that  he  has  not  contracted  it  away,  nor 
settled  to  sell  on  s[)ecnlation,  and  any  grant  or  conveyance 
made  by  him  before  entry  is  declared  void,  Avitli  an  excep- 
tion in  favor  of  bona  fide  purchasers  for  a  valuable  consid- 
eration. This  restriction  has  been  held,  however,  to  extend 
only  to  the  rigid  to  pre-emption;  that  is,  the  preference 
right  to  purchase  at  a  minimum  price,  no  matter  Avhat  the 
value  might  be  when  the  time  limited  for  perfecting  the 
pre-emption  had  expired,'  leaving  the  pre-emptioner  free  to 
sell  or  otherwise  dispose  of  the  land  after  the  entry  had 
been  made."  Since  the  passage  of  the  act  of  18-il,  in  those 
parts  of  the  United  States  where  that  act  applies,  the  right 
to  sell  has  been  freely  exercised  after  the  claim  was  proved 
up,  the  land  paid  for  and  the  certificate  of  entry  received; 
the  pre-emptioner  then  standing  in  the  same  relation  to  tha 
government  as  other  purchasers,'  and  though  the  patent 
may  only  issue  to  the  purchaser,  it  will  inure  to  the  benefit 
of.  his  grantee."  By  proof  and  payment  the  equities  of  the 
claimant  are  matured  and  complete,  and  while  the  right  of 
government  to  dispose  of  its  OAs^n  propc;rty  is  undisputed,  as 
well  to  prescribe  rules  for  the  disposition  of  same,  3'et  sub- 
ject to  these  well-known  principles,  parties  rightfully  in 
possession  of  the  soil  may  make  valid  conti'acts,  even  con- 
cerning the  title,  predicated  upon  the  hypothesis  that  they 
may  thereafter  lawfully  accjuire  same,  except  in  cases  where 
Congress  has  imj)osed  jiositiv^e  restrictions." 

§  11.  Graduation  Entries.  In  order  to  further  facili- 
tate settlement  and  encourage  the  sale  of  public  lands  to 
actual  settlers  and  cultivat(jrs,  Congress,  by  the  act  of 
August  4,  1854,°  i)rovided  for  a  graduated  scale  of  prices, 

'  Meyers  v.  Croft,  13  Wall.  291.  and  payment,    might  be  enforced 

'  Robbins  v.  Bunn,  54  111.  48.  after    entry    had  been  perfected: 

'  Cady  V.  Eighmey,  54  Iowa,  615,  Clailv  v.  Baker,  14  Cal.  612;  Cliristy 

*  Camp  V.  Smitli,  2  Minn.  155.  v.  Dana,  31  Cal.  548.   See  also  Rea- 

5  Lamb   v.  Davenport,   18  "Wall.  soner  v.  Markl*>y,  25  Kan.  635. 

307.     In  California  it  has  been  held  *10  Stat,  at  Large,  574. 

that  a  mort^'age  made  before  proof 


IXCErXIOX    OF    TITLE. 


121 


for  lands  Avliicli  had  boon  in  the  market  for  ten  years 
and  upward,  ranging  from  1-2^  cents  to  ^1.00  per  acre.  This 
act  remained  in  force  until  June  2,  1802,  when  it  was 
repealed.'  In  its  essential  features  it  closely  resembled  the 
pre-emption  law,  to  which  it  was  in  fact  an  aid.  The  lands 
could  also  be  purchased  for  cash  at  the  graduated  price. 
Like  the  pre-emption  law,  the  rights  conferred  by  this  act 
were  ])ersonal,  and  because  of  actual  settlement  and  culti- 
vation, made  or  contemplated.  Assignments  of  the  rights 
acquired  under  the  acts  Avere  expressly  prohibited  and 
wholly  disregarded,  and  the  patents  in  every  instance  issued 
to  the  original  purchaser. 

The  method  of  acquiring  title  under  graduation  acts  was 
substantially  the  same  as  under  the  pre-emption  laws,  with 
(Jnly  a  slight  diiference  in  details.  It  is  not  customary,  nor 
is  it  necessary,  to  incor})orate  the  ince})tive  details  j>;vV/;*  to 
the  entry  in  tlie  abstract.  The  matter  is  optional  with  the 
examiner,  yet  the  entry  is  the  first  material  stage. 

§12.  Donation  Eiitries.  In  a  few  localities  initiations 
of  title  will  be  found  under  what  are  known  as  the  "  Dona- 
tion Acts."  These  acts  were  a  series  of  laws  designed  to 
induce  settlements  on  the  public  lands  in  dangerous  or  dis- 
tant parts  of  the  nation.     They  were  all  local  in  character  as 


'  Tliousanils  of  entries  wore  made 
under  tlie  provisions  of  this  act, 
the  <iiiantity  of  land  Kold,  as  shown 
by  the  reports  of  the  General  Land 
Office,  aggrepjating  nearly  20, 01)0,- 
0(X)  acres.  It  is  still  ix)ssible  that 
in  some  few  cases  patents  have 
not  b<*«'n  iKsued  on  the  entries 
made,  jw  there  were  many  cases  in 
which  the  reipiired  j)ri>of  of  settle- 
ment an<l  cultivation  was  wanting, 
lint  under  a  confirmatory  act 
j);tSKe<l  March  !?,  1H')7,  the  patents 
were  delivired,  on  apiilication 
therefor,  without  the  pnxjf  being 
nnjuired  in  all  such  cases,  wlu-ro 
the  entry  wa>  allowed  prior  to  the 
pnfiKngc  of  that  act,  and  where  it 


was  not  found  to  be  fraudulently 
or  evasively  made.  Sulisetpieut  to 
the  jKissnge  of  that  act,  and  prior 
to  June  2,  18G2,  when  the  gradua- 
tion law  was  repealed,  a  large 
number  of  entries  were  allowed 
under  that  law,  and  in  the  course 
of  business  there  came  to  1k'  many 
j)atents  for  entries  so  allowed,  the 
delivery  of  which  was  suspended 
for  the  reason  that  the  n-cjuisito 
proof  was  not  forthcoming.  To 
this  class  of  cases  the  coidirmatory 
l)rin<iples  of  the  net  of  March  !3, 
IK'tT.  were  nuido  applicable  by  the 
act  of  I'eb.  17,  1H7;J,  and  tin-  issuing 
of  patents  has  since  continued. 


122  ABSTRACTS    OF    TITLE. 

well  as  temporary  in  tlieir  ai)|)lieati()ii,  and  have  all  long 
since  cxjnred  by  their  own  limitation.  In  their  practical 
features  they  resembled  the  present  homestead  law,  of  whicli, 
indeed,  they  were  the  precursors.  The  first  of  these  laws, 
passed  in  1S42,'  was  had  in  view  of  the  Indian  difficulties 
in  Florida,  and  provided  for  the  donation  of  one  quarter  sec- 
tion of  land  to  any  person,  able  to  bear  arms,  who  should  make 
an  actual  settlement  within  a  certain  ])ortion  of  the  penin- 
sula.' In  1S50,*  a  still  more  liberal  act  was  passed  with  spe- 
cial reference  to  the  Territory  of  Oregon,  and  when  in  1853 
the  Territorial  government  of  AVashington  Territor}'^  was 
established,  its  terms  were  extended  over  that  Territory. 
Tliis  act  donated  from  a  quarter  to  an  entire  section,  a  pre- 
mium being  i)laced  on  matrimony  by  a  douljle  allowance  to 
a  married  man,  and  permitting  the  wife  to  retain  the  own- 
ership of  lialf  the  land  in  her  own  riglit.*  Residence  on  and 
cultivation  of  the  land  for  four  consecutive  years  was  neces- 
sary to  insure  a  patent  from  the  government.  The  act  ex- 
])iretl  Dec.  1,  1855,  In  ISo-i'  a  similar  act  was  ])asscd  with 
special  reference  to  the  Territory  of  Kew  Mexico,  'excc])t 
that  the  grant  was  restricted  in  quantity  to  160  acres,  and 
available  only  by  males  then  residing  in  the  Territory  or 
who  should  remove   there  prior  to  1858.' 

§  13.  lloinestead  Entries.  Until  1802,  Congress  had 
passed  no  general  law  offering  the  ]iublic  domain  in  a  lim- 
ited quantity,  to  any  person  who  would  cultivate  and  make 
a  permanent  home  thereon.  Pre-emption  laws,  securing 
the  right  to  enter  land  by  purchase  at  a  minimum  ])rice  fixed 
per  acre  had  been  enacted,  and  donation  laws,  applicaljle  to 
particular  States  had  been  passed,  but  the  liberal  policy  of 
offering  homesteads  had  not  been  extended  to  all  persons. 
The  act  of  May   20th  of  that  year  ^  is  the  first  homestead 

'  5  Stat,  at  Large,  502.  tificates  were  issued  under  tliis  law 

'  Tliis  law,  which  was  variously  covering  about  3.000,000  acres, 

amended,  resulted  in  the  patenting  *  10  Stat,  at  Large,  308. 

of  1,317  claims.  *  Less  than  200  certificates  have 

^  9  Stat,  at  Large,  496.  been  issued  under  this  law. 

■•  Upwards  of  8,000  donation  cer-  ^  12  Stat,  at  Large,  392. 


INCEPTION   OF   TITLE.  123 

law  of  the  ijovcrnmcut,  "and  it  Avould  be  dilTicult  perliajis," 
says  Dillon,  J.,  "  to  point  to  any  enactment  of  the  Federal 
Congress,  more  wise  in  conce])tion,  just  in  policy,  and  bene- 
ficial in  results  than  this."  '  By  this  act  a  quantity  of  land, 
not  exceeding  100  acres,  is  given  to  any  person  being  the 
head  of  a  family  and  possessing  the  requisite  qualifications, 
on  condition  of  settlement,  cultivation  and  continuous  oc- 
cupation as  a  home  by  the  settler,  for  the  period  of  five 
years.  During  this  period  he  is  prevented  from  alienating 
any  part  of  it,  or  from  making  any  actual  change  of  resi- 
dence, or  from  abandoning  the  land  for  more  than  six  months 
at  a  time.  A  full  compliance  with  all  the  pro\dsions  of  the 
act,  entitles  him  to  a  patent  at  the  expiration  of  five  years. 
The  law  requires  the  land  "'  to  be  located  in  one  body,  in 
conformity  to  the  legal  subdivisions  of  the  public  lands, 
and  after  the  same  shall  have  been  surveyed."  The  appli- 
cant is  required  to  file  with  the  Ilegister  of  the  district 
land  office  his  application,  designating  the  tract  desired  to 
be  entered,  together  with  his  affidavit,  setting  forth 
the  facts  which  bring  him  within  the  requirements  of 
the  law.'  whereupon  the  Receiver  issues  homestead  du- 
]>licate  receipts  for  each  entry,  one  of  which  is  delivered  to 
the  a])plicant,  and  the  other  returned  to  tlie  General  Land 
Office.^  No  certificate  is  issued  at  the  time  of  entry,  nor 
until  the  expiration  of  the  five  years,  exce})t  in  case  of  a 
sale  for  the  benefit  'jf  infant  heii's,*  or  where  full  })ayment 
is  made  before  that  time  as  ]irovided  by  the  act.  In  case  of 
a  sale  for  the  benefit  of  infant  heirs,  a  certificate  issues  in 
the  name  of  the  purchaser,  upon  evidence  of  sale,  made  in 
obedience  to  a  decree  of  a  court  of  com]>etent  jurisdiction. 
In  ciise  of  full  payment  tlie  ])arty  is  required  to  make  j)roof 
of  settlement  and  cultivation  as  retjuircd  by  the  pre- 
emption laws,  ujjon  which,  and  the  surrender  of  tlie  home- 

'  Seymour  ?•.  Samhrs,  .'{  I)ill.  l:;?.  land   a|i|ilit(l    fur,    based   on  .fl.L'5 

*  A  fee  of  $10  niuHt  altw)  Ix?  paid  jht  iw.rv. 
at  thin  titiif,  lo.';etIier  with  a  e<.m-  ^<"ir.  (Jen.  Land  Oflieo,  Mar.  1, 

mimuin   of    r)tie-liair    of    oin-    \»r  T  '  I. 
cent.    uiMjn  the  c:ihh   vahie  of  llie  *  g  2  of  act. 


121:  ABSTUACTS   OF    TITLE. 

stead  tluplicatc,  a  new  and  original  cntiy  may  be  made  and 
ci  pre-emption  receipt  issue  as  in  ordinary  cases.' 

§  14.     lliixlits  Aciniircil  Uinlor  Honiestcad  Acts.    By  the 

preliminary  i)roceeilings  already  noted,  an  ince[)ti\  o  right  is 
vested  in  the  settler,  which  by  a  faithful  observance  of  the 
hiw  in  regai'd  to  settlement  and  cultivation  for  the  continuous 
term  of  live  years,  and  final  proof  and  payment"  is  perfected 
and  made  the  basis  of  a  patent  or  com])lete  title.  The  home- 
stead settler's  right  attaches  only  from  the  date  of  entiy,  the 
pre-em]itors  from  the  date  of  his  actual  personal  settlement. 
The  title  in  either  case  is  consummated  by  a  full  C(im])liance 
with  the  terms  and  conditions  im]wsed  by  law.^  By  the  4th 
section  of  the  act  of  1802,  land  acquired  in  this  manner  is  de- 
clared to  be  not  liable  for  debts  contracted  prior  to  the  issu- 
ing of  the  patent. 

Tlie  sale  of  a  homestead  claim  by  the  settler,  before  com- 
])letion  of  title,  vests  no  title  or  efiuities  in  the  purchaser, 
and  is  not  recognized  by  law,'  and,  in  making  final  proof, 
the  .settler  is  by  law  re{|uired  to  swear  that  no  part  of  the 
land  has  been  alienated  except  for cliurch.cenietcr}^  or  scliool 
purposes,  or  the  right  of  Avay  of  a  railroad.^ 

§  15.  Desert  Land  Eiitrh^s.  In  order  to  facilitate  sales 
of  the  })uijlic  lands  lying  in  the  vast  arid  region  west  of  the 
Missouri  river,  Congress  in  1877'passed  what  is  known  as  the 

'  Cir.  Gen.  Lanrl  Office,  Oct.  30,  '  Commi«;ion(>r's     Instni-  tmns, 

1862.     From  May  20,  18()2,  the  date  Aug.  25,  1866. 

of  tiie  law,   to  June  30,  1889,  ac-  ''  An  excei)tion  to  tliis  rule  seems 

cording  to  a  very  modest  estimate,  to  have  been  made  by  the  Act  of 

the  number  of  patents  issued  was  June  15,   1880  (21  Stat,  at  Larj.e, 

297,208,  embracing  an  ai-ea  of  74,-  §  237).     This  act,  however,  is  retro. 

302    square    miles,    or    47,553,280  spective  in  its  operation  and  appli- 

acres.     Rep.    Gen.     Land    Office,  cable    only    to    peculiar    circum- 

1889.  stances.     See,  Cii*.  Gen.  Land  Office 

'  The  payment  here  mentioned  is  Mar.  1 ,  1884. 

a  commission  of  i  of  one  per  cent.  *  Rev.  Stat.  U.  S.  §  2288. 

paid  on  the  issuance  of  the  certifi-  «ActofMai-ch  3,1877.     This  act 

Gate.     Tlie  fees  and  commissions,  applies  only  to  California,  Oregon, 

however,  vary  somewhat.     See  In-  Nevada,  Washington,  Idaho,  Mon- 

structions  Gen.   Land  Office,  Oct.  tana,  Utah,    Wyoming,    Aiizona, 

33,  1863.  Kew  Mexico  and  Dakota. 


INCEPTIOX    OF    TITLE.  125 

"  Desert  Land  Act/'  the  object  of  Avbicli  is  to  effect  a  recla- 
mation of  lands  which  will  not  without  artilicial  irrigation, 
])roduce  any  agricultural  crop.  This  act  is  not  a  donation 
law,  however,  but  simply  a  variation  of  the  ordinary  cash 
entr\^,  its  beneficial  features  being  that  the  claimant  has  three 
yeai*s  in  which  to  introduce  water  and  pay  for  the  land.  A 
duplicate  certificate  is  issued  at  the  time  of  entry,  a  small 
entry  fee  being  paid,  but  final  certificate  of  purchase  is  not 
given  until  proof  of  compliance  and  full  payment  has  been 
made,  which  is  usually  three  years  afterward. 

§  16.  Tree  Claims.  To  promote  the  growth  of  timber 
on  the  treeless  prairies  of  the  "West,  Congress  has  further 
enacted  a  law,  by  which  any  person  entitled  to  make  a  pre- 
em]itioii  or  homestead  entry  may  secure  100  acres  of  public 
land  by  planting,  protecting  and  keeping  in  a  healthy  grow- 
ing condition  thereon,  for  eight  years,  ten  acres  of  timber. 
Lands  subject  to  entry  under  this  act  must  be  composed 
exclusively  of  prairie  lands,  or  other  lands  devoid  of  timber. 
At  the  expiration  of  eight  years  final  proof  is  made  and 
patent  issues  as  in  other  cases.  Residence  or  actual  settle- 
ment is  not  necessary,  nor  will  an  entry  of  this  character 
preclude  a  simultaneous  homestead  or  pre-emption  entry, 
hence  "tree  claims''  have  been  made  on  a  large  portion  of 
the  western  lands  and  will  form  the  initial  stage  of  title  to 
mucli  valuable  ])roj)ei'ty. 

§  IT.  Location  by  3Iilitary  Warrants.  The  practice  of 
granting  bounty  land  to  olHcers  and  soldiers  who  have  been 
engaged  in  the  military  service  of  the  United  States,  as  a 
pul)lic  reward  for  di-votion  and  jjatriotisin,  dates  back  to  t!io 
jMM'iod  of  tlie  li<'V(»hiti<)ii,  and  has  loi-nied  the  subject  of  a 
nuiiiUir  of  Congressional  enactments  since  that  time.  The 
warrants  orcertilicates  issued  in  i)ursuaiice  of  these  acts  may 
bo  located  at  any  land  olUce  in  the  United  States  and  must 
bo  made  on  lands  subject  to  ])pivatc  entry,  accorcb'ng  to  the 
legal  sulxlivisions  and  in  one  l^ody,  the  selection  always  to 
l»c  in  iiH  com|)act  a  form  as  possible.  The  law  exj)ressly 
foH)ids  the  location  of  a  wan-ant  upon  any  lands  to  which 
there  shall    be  a  preemption  right,  or  upon    wliicli    Ihcro 


1:20  ABSTRACTS   OF    TITI-E. 

shall  bo  an  actual  settlement  or  cultivation,  or  u[)<>u  any 
lands  wli  it'll  are  reserved  or  "withdrawn  from  market  for 
any  jjurpose  Avhatever.'  When  located  by  the  "warrantee  in 
]HM'son  tlioy  are  available  upon  any  tracts  of  land  which  may 
be  entered  under  the  general  pre-emption  laws,  whether 
same  has  or  has  not  been  offered  at  public  sale."  By  act  of 
Congress  of  IMarch  22,  1852,  the  certificates  of  location  of 
military  land  warrants  were  made  assignable,  and  the  inter- 
est ac(]uired  by  valid  location  was  made  to  ])ass  by  deed  or 
instrument  of  writing,  in  the  form,  and  subject  to  the  regu- 
lations prescribed  by  the  General  Land  Office,  the  assignee 
becoming  fully  vested  with  all  the  rights  and  property  of 
the  original  owner  or  warrantee.'  The  entry  is  made  by 
application  to  the  Register  alone,  who  issues  duplicate  cer- 
tificates of  purchase,  one  of  which  is  delivered  to  the  pur- 
chaser and  the  other  transmitted  to  the  General  Land  Office 
as  in  other  classes  of  entries.  If  the  certificate  has  been 
assigned,  and  received  before  the  issue  of  the  patent,  the 
same  will  be  issued  in  the  name  of  the  assignee.  Assign- 
ments and  locations,  as  well  as  deeds  of  land  so  located  prior 
to  the  issue  of  the  patent,  if  made  before  March  22,  1852, 
have  been  held  invalid.* 

§  IS.  Land  Scrip.  In  1784,  the  State  of  Virginia  ceded 
to  the  United  States  the  largest  and  most  valuable  body 
of  land  that  ever  belonged  to  the  public  domain  of  any  State 
in  the  world.  But  previous  to  the  cession  she  had  promised 
to  give  certain  portions  of  it  to  the  soldiers  and  sailors  who 
had  served  during  the  Revolutionary  War  in  her  armies 
and  navies.  The  government  took  the  land  charged  with 
this  obligation  to  satisfy  the  claims  of  Virginia's  defenders, 
and  assumed  all  unsatisfied  outstanding  military  land  w^ar- 

■  Act  Feb.  11,  1847;  Act  Sept.  28,  bountios  from  the  origin  of  these 

1850.  laws  to  June  30,  1883,  amounted  to 

'  Instructions  Gen.  Land  Office,  61,064,150  acres.    Rep.  Pub.  Land 

April  1,  1848;  do  Mar.  31,  1851.  Commission,  1883. 

3  AVaters  v.  Busch,  42  Iowa,  255;  *  Nichols  v.  Nichols,  3  Pin.  (Wis.) 

Bell  V.  Hearne,  19  How.  260.     Tlie  174;  Stephenson  v.  Wilson,  37  Wis. 

grants  for  military  and  naval  land  482. 


INCEPTION    OF   TITLE.  1'2  i 

rants  of  the  State,  issued  by  proper  authorities,  giving  in 
exchange  therefor  the  land  "scrip"  of  the  United  States.' 
This  scrip  is  receivable  in  payment  of  any  lands  owned  by 
the  United  States,  subject  to  sale  at  private  entry,  but  can 
not  be  ap]>lied  by  pre-emptors.  There  has  also  been  issued  un- 
der acts  of  Congress,"  and  in  pursuance  of  treaties  with  the 
Indian  tribes,  a  species  of  location  certificates  known  as  Indian 
or  Ilalf-breed  scrip.  It  is  issued  to,  and  can  only  be  located 
in  the  name  of  the  Half-breed,  and  unlike  the  Virginia 
scrip  can  not  be  treated  as  money,  but  must  be  located  acre 
for  acre.  This  scrip  is  not  assignable  and  transfers  of  same 
(ire  held  void.  Though  originally  confined  to  reservations, 
the  sphere  of  location  has  by  statute  been  enlarged  so  as  to 
comprise  any  other  unoccupied  lands  subject  to  pre-emption 
or  private  sale.  Iso  rccei})t  is  issued  to  the  locator,  except 
in  unavoidable  cases,  as  where  there  is  a  small  excels  in  the 
area  of  location  over  the  scrip,  which  must  be  paid  for 
and  receipt  issued  as  in  bounty  land  warrant  cases.  But 
no  certificate  of  purchase  is  issued,  as  in  case  of  money 
purchases,  the  scrip  and  application,  instead  of  certificates 
of  purchase,  being  the  instruments  of  title  which  are  returned 
to  the  General  Land  Office  in  this  class  of  business." 

A  certificate  by  the  commissioner  of  the  General  Land 
Office  showing  the  location  of  the  scrip,  and  that  such  lo- 
cation was  made  by  the  party  authorized  to  do  so,  is  com- 
petent evidence  to  show  title  in  the  location.  A  co]\v  of  the 
scrip  is  not  essential  to  prove  title  from  the  goverunicnt 
wlionever  this  becomes  necessary.* 

Private  land  scrip  is  issued  on  confirmation  of  the  claims 
of  individuals,  and  is  intended  as  a  compensation  to  the 
donee  for  the  loss  of  valuable  estates  or  interests  in  lands. 
It  may  be  assigned,  and  when  assigned  may.  be  Incatcil  in 
the  name  of  the  assignee.  It  would  a]>pear  that  entries  made 
with  this  .scrij)  are  not  patentable,  no  provision  bein^-  mad(» 
for  same,  but  it  .seems  that  in  this  case  a  patent  is  not  altso- 

'  0 opinions  Atty.  Hen.  2m;.  y  do  'Instructions  fJcn.   I-:in«l   (  Xlico, 

l.W;  A<-t  AuK'.  :M,  1H.')2.  F.I..  'J'J,  isdl;  ,1,,.  M:iy  V\.  IMH. 

» 10  Si.it.  Ill  I>:irgc',  iiOl.  *  Wilcox  v.  Juckaon',  lOJ  111.  201. 


128  ABSTRACTS    OF    TITLE. 

liitdv  iiorossrirv  for  tlio  full  ])rotection  of  claimants,  inasmuch 
as  a  certificate  of  entry  will  be  full  eviilonco  of  a  complete 
relinquishment  by  the  United  States  of  all  her  interests  in 
the  land  located.' 

The  most  important  of  this  peculiar  class  of  paper  is  that 
known  as  Agricultural  College  scrip.  It  is  issued  in  pur- 
suance of  an  act  of  Congress,  passed  July  2, 1862,  to  donate  a 
portion  of  the  public  land  to  the  several  States  and  Terri- 
tories which  may  provide  colleges  for  the  benefit  of  agricul- 
ture and  mechanic  arts.  The  amount  of  land  donated  by 
this  act  was  a  quantit}^  ecpial  to  30,000  acres  for  each  senator 
and  representative  in  Congress  by  the  apportionment  under 
the  census  of  ISOO.  The  quantity  of  land  to  which  each 
State  was  entitled  was  to  be  selected  primarily  froin  such 
lands,  within  the  limits  of  such  State,  as  were  subject  to  sale 
at  private  entry  at  the  minimum  price,  and  in  case  of  a 
deficiency  of  such  lands,  the  Secretary  of  the  Interior  was 
instructed  to  issue  land  sci-ipto  the  amount  in  acres  for  such 
deficienc}'-  of  its  distributive  share.  This  scrip  to  be  sold  by 
the  States  and  the  proceeds  applied  to  the  uses  prescribed 
by  the  act.  The  State  is  prohibited  from  locating  the  scrip 
within  the  limits  of  any  other  State,  but  their  assignees  may 
locate  same  upon  any  of  the  unappropriated  lands  of  the 
United  Statos  subject  to  sale  at  private  entry,  or  in  ]>aymcnt 
for  pre-emptions,''  and  in  commuting  homestead  entiies.' 
The  manner  of  proceeding  to  acquire  title  with  this  class 
of  certificates  is  the  same  as  in  cash  and  warrant  cases. 

§  19.  SwampLaud  tSrants.  By  act  of  March  2,  1849, 
Cono-ress  made  a  grant  to  the  State  of  Louisiana  of  certain 
swamp  and  overliowed  lands,  and  by  act  of  Sept.  28,  1850,* 
made  a  similar  concession  to  the  State  of  Arkansas  "  and 
each  of  the  other  States  of  the  Union  in  Avhich  such  swamp 
and  overliowed  lands  may  be  situated."  The  first  act 
applied  only  to  the  State  of  Louisiana,  and  vested  the  fee  in 

'Opinion  and  instructions  Secy.  » Instructions  Gon.  Land  Office, 

of  Int.,  Aug.  4,  1875.  Feb'y  8,  1872.     See  also  15  Stat,  at 

« Instructions  Gen.  Land  Office,  LarRe.  227. 

July  22,  1870.  *  9  Stat,  at  Large,  519. 


INCEPTION   OF   TITLE.  121) 

said  lands  u])on  the  ap]n'oval  of  the  selections  by  the  Secre- 
tary of  the  Interior.  The  general  \nw  of  1S50  provides  that 
the  fee  shall  vest  in  the  State  upon  the  issuing  of  a  patent. 
The  method  of  selection  being  left  optional  with  the  States, 
]\Iichigan  and  Wisconsin  adopted  the  field  potes  of  survey 
as  the  basis  of  their  acceptance,  while  the  others  agreed  to 
ascertain  the  lanils  by  examination  in  the  field.'  The  grant 
com})riseil  all  lands  which  were  wet  and  untit  for  cultiva- 
tion, and  included  also  all  lands  which,  though  dry  part  of 
the  year,  were  subject  to  inundation  at  the  planting,  grow- 
ing or  harvesting  season,  so  as  to  destroy  the  crop.  These 
lands,  for  the  most  part,  have  since,  by  drainage  and  culti- 
vation, b3come  valuable  for  agricultural  purposes,  and  the 
title  to  many  fine  farms  in  the  Western  States  is  derived 
through  the  swamp  land  grants.*  Though  the  act  provides 
for  the  issuing  of  a  patent  to  vest  the  fee,  it  Avas  itself  a 
present  grant,  wanting  nothing  but  a  definition  of  bound- 
aries to  make  it  perfect,  the  patent  being  merely  in  confirma- 
tion of  the  equitaljle  title  already  vested,''  yet  as  the  fee 
remained  in  the  government  until  the  issuance  of  the  patent, 
the  State  would  have  no  power  to  convey  a  legal  title  or 
dispose  of  the  land  prior  to  that  event."  The  complete  ab- 
stract, therefore,  should  recite  the  original  grant,  showing 
the  acceptance  by  the  State,  and  any  other  necessary  feat- 
ure, and  finally  the  patent  from  the  government,  as  the 
foundation  of  title.  It  will  b3  observed  that  the  provisions 
of  this  act  extend  to  and  their  benefits  are  conferred  upon 
only  "each  of  the  other  States  of  the  Union,"  and  it  ha? 
always  been  held  by  the  General  Land  Ollice  that  the  grant 
extended  only  to  States  in  existence  at  the  date  of  act,  and 
that  as  new  States  were  admitted  adilitional  legislation  was 
needed  to  confer  the  benellts  of  tiie  swamp  graut  upon  them." 

'  1  UvVt'h  L.  L..  543.  »  9  OpiiiioiiH  Ally.  C.-ii.  2r.3. 

*  Siiicv;  the  [(attsa^o   of  these  aets  *  l'ai"soii.s   v,    Coinin'rd   S.   &  U. 

and  prior  U)  June  30,    IHH'J,  there  Lands,  «  Ww.  230. 

\iiUi  \Mien  \niU'uUt<]  U>  li f teen " Stat<-"fl  'See  Ruling  ConiinisHioner (leii. 

huuls  aKKr<-Kati"K  nT.OUD.OTa  aen-H.  Land  (Jill.-.-,  Jan. Ill,  ISTI,  and  .May 

K.-|i,  (J.-n.  Land  Oflke,  Ibb'J.  2,  1^71. 
'J 


130  ABSTRACTS    oF   TITLE. 

In  iliis  construction  Congress  seems  to  have  concurred,  for 
in  18(30  we  find,  a  special  statute  extending  tlie  swamp  grant 
to  tlie  States  of  Oregon  and  Minnesota,  whicli  States  had 
been  a<lmitted  subsequent  to  the  passage  of  the  grant  of 
1S50.  This  is  undoubtedly  correct  as  all  grants  of  the  pub- 
lic domain  are  in  the  nature  of  benefits,  and  not  usually 
bestowed  by  general,  but  by  special  legislation,  derived 
through  the  original  granting  acts,  designating  the  charac- 
ter and  extent  of  the  grants  and  the  manner  in  which  they 
are  to  be  made  effective  and  secure  to  the  grantee. 

§  20.  School  Lands.  It  has  always  been  a  cherished  pol- 
icy of  the  government  to  set  apart  and  appropriate  a  portion 
of  every  township  for  the  advancement  of  education  in  the 
support  of  schools.  Formerly,  one  section  only  was  devoted 
to  this  most  laudable  purpose,  but  in  the  States  admitted 
during  later  j^ears  two  sections  have  been  reserved,  usually 
sections  16  and  30.  The  practice  of  setting  apart  section  16 
is  traceable  to  the  ordinance  of  1T85  (being  the  first  enact- 
ment for  the  disposal  by  sale  of  lands  in  the  "Western  terri- 
tory) and  became  a  fundamental  principle  by  the  ordinance 
of  1787,  which  settled  terms  of  compact  between  the  people 
and  States  of  the  JMorthwest  Territory  and  the  original 
States.  One  of  the  articles  affirming  that "  religion,  morality 
and  knowledge  being  necessary  for  good  government  and 
happiness  of  mankind,"  declared  that  "  schools  and  the  means 
of  education  should  forever  be  encouraged."  This  principle 
was  extended  first  b}''  congressional  enactment,'  and  after- 
ward in  1802,  by  compact  between  the  United  States  and 
Georgia  to  the  Southwest  Territory.  The  constancy  Avith 
which  the  government  has  ever  adhered  to  this  policy  in  the 
various  compacts  with  the  people  of  the  newly  formed 
States,  and  the  care  which  Congress  has  manifested  to  pre- 
vent the  accumulation  of  prior  obligations  wliich  iniglit 
interrupt,  fully  display  their  estimation  of  its  im])ortance 
and  value."  AVhere  section  16  or  36  are  in  whole  or  in  part 
included  in  private  claims,  held  by  titles  confirmed  or  legally 

'  1  Stat,  at  Large,  550.  (U.S.)  173,  for  an  elaborate  review 

*  See  Cooper  v.  Roberts,  18  IIow.       of  this  subject. 


INCEPTION    OF   TITLE.  131 

decided  to  be  valid,  the  State  may  select  their  equivalent  in 
other  lands  which  are  called  generally  ''lieu"  lands.  The  res- 
ervation of  these  sections  is  made  a  part  of  the  organic  act 
on  the  admission  of  the  State  into  the  Union,  in  words  of 
present  grant,  and  passes  to  the  State  the  equitable  title  to 
the  sections  without  further  le^'islation.  As  the  govern- 
luent  extends  its  surveys,  so  that  the  location  of  the  section 
can  be  ascertained,  the  title  in  the  State  becomes  perfect  and 
complete.' 

§  :21.  Internal  Iniproveniont  Grants.  In  addition  to 
the  grants  already  enumerated,  Congress,  from  time  to  time, 
has  made  large  grants  of  the  public  domain  to  tlie  diiferent 
States,  to  aid  in  the  development  of  the  country  by,  the 
building  of  railroads  and  other  internal  improvements 
These  grants,  though  local  in  their  nature,  are  all  governed 
by  the  same  general  princi])les.  The  acts,  as  a  rule,  con- 
vey in  words  of  present  grant  which  vests  a  fee  simple  title 
in  the  States  to  which  the  lands  are  given,"  and  where,  as  in 
case  of  an  unlocatcd  railroad,  no  specific  tracts  are  desig- 
nated, they  have  been  held  to  constitute  a  conditional  grant 
•ill  j^riBscnti  in  the  nature  of  a  "float"  which  does  not  attach 
to  an}''  particular  parcel  of  the  public  lands  until  the  neces- 
sary determinative  lines  have  been  fixed  upon  the  face  of 
the  earth,'  but  u])on  such  definite  location  the  title  to  each 
particular  parcel  will  be  as  complete  as  if  it  had  been  granted 
by  name,  number  or  description,'  relating  back  to  the 
date  of  the  grant.*  The  same  general  rules  wiD  also  apply 
to  special  grants  for  State  improvements. 

'Cooper  V.    Roberts,    18    ITow.  sehools,     tho     halanpo    has    been 

(U.  S.)  17:};  Bucher  r.  Wc'thcrl)}',  l  variously  given    for    aKiieuUural 

Otto  (U.  S.),  517.     There  li:us  been  ainl     ii)e(  lianical    colleges,   seini- 

grantetl   and  reserved   for   educta-  nariis  or  universities. 

ti<mal  purposi-s.  sinee  th<>  organiza-  *  U.  S.  r.  I'erelunan,  7  Peters,  51 ; 

lion  of  the  government  and  jirior  U.  S.  v.  Brooks,  lU  Howard,  412; 

to  June  30,  18H3,  a  grand  l^jtal  of  Godfrey  r.  Bradley,  2  McT.oan,  112. 

7H,KS9,K:J9  arruH.     Of  this  amount  *H  Opinions  Atty.  Gen.  211. 

67,80:i,'J19    acres  liave    been    do-  *li  ()|>ini<inH  Atty.  (ien. -ll ;  R.  R. 

nat<'d  for  the  HUitiK)rt   and  main-  Co.  i*.  I'uited  St.ites,  112  C  S.  T-\A. 

t<nunce  of  the  public  or  common  'Swannu.  Lindaey,  70  Ala.  5U7. 


l;>-2  ABSTRACTS    OF    TITLE. 

All  i)ul»lic  grants  arc  to  be  const  i-ueil  most  strongly  against 
the  grantee,  and  this  is  specially  true  of  legislative  grants. 
In  construing  a  congressional  grant,  it  should  always  be 
borne  in  mind  that  the  act  by  which  it  is  made  is  a  law  as  well 
as  a  conveyance,  and  that  such  effect  must  be  given  to  it  as 
will  carry  out  the  intent  of  Congress.  This  intent  can  not 
be  defeated  by  ap]ilying  to  the  grant  the  rules  of  the  com- 
mon law,  which  are  properly  applicable  onl}^  to  transfers 
between  private  parties,  and  to  the  validity  of  which  there 
must  exist  a  present  power  of  identification  of  the  land  con 
veyed.  Where  no  such  power  exists,  instruments  with 
words  of  present  grant,  are  operative,  if  at  all,  only  as  con- 
tracts to  convey,  but  in  these,  as  in  all  other  cases,  the  rules 
of  the  common  law  must  yield  to  the  legislative  Avill.' 

§  22.  Land  Grants  to  Railroads.  From  the  period  of  the 
inauguration  of  the  svstem  of  land  grants  in  aid  of  internal 
improvements,  until  the  year  18G2,  it  was  the  invariable 
practice  to  make  the  grant  to  the  State,  which,  in  this  in- 
stance, acted  as  a  trustee  or  transfer  agent,  com-eyingtothe 
corporation  the  fee  of  the  land  after  performance  of  condi- 
tions. The  charter  of  the  Union  Pacific  K.  E.  effected  a 
complete  change  in  this  respect.  Here  the  grant  Avas  made 
direct  to  the  corporation,  all  intermediaries  being  avoided, 
and  the  precedent  thus  set  has  been  followed  in  a  large  num- 
ber of  grants  made  since  that  time."  The  act  of  Congress 
granting  the  lands  is  the  inceptive  measure  of  all  titles 
initiated  in  this  manner,  and  forms  the  first  link  in  the  chain. 
The  acts  are  usually  couched  in  words  of  present  grant,  as 
"  that  thetr  le  and  is  hereby  <jvanU<l^''  and  when  so  worded 
they  constitute  a  conversance  that  can  only  be  defeated  by 
failni-e  to  perform  the   conditions   annexed   to  the  grant. 

'  Scluilcnberg   v.    HaiTiman,  21  complied  witli  tlie  laws,   it  would 

Wall.  (U.  S.)  60;  R.  R.  Co.  v.  R.  R.  require  21.j,0U0,000  of  acres  of  the 

Co.,  97  U.  S.  491.  public  domain    to    satisfy    the  re- 

'  It  is  estimated  that  if  the  lands  quu-ements  of    the  various  laws, 

embraced  in  hmits  of    gi-ants  to  Actual  selections,  forfeitures,  etc., 

railroads  were  all  available,   and,  have  greatly  reduced  this  amount 

that   the    coqioraticMis.  State  and  Soe    Rop.    Public  Land  Commis- 

National,  built    their    roads,   and  sioner,  1883. 


INCEPTION    OF   TITLE.  133 

The  general  riglit  to  tlie  land,  snbject  to  the  exceptions  con- 
tained in  the  act,  vests  at  the  date  of  the  passage  of  thehiAV, 
and,  as  in  the  case  of  other  unlocated  tracts,  attaches  to  the 
specific  lands  at  the  time  ol"  filing  the  plat  in  the  general 
hind  oliice.  After  this  has  been  accomplished  the  title  of 
the  coqioration  becomes  fully  vested  and  com]>lete.' 

§  23.  ">Vho  Ma.v  Acquire  Title.  The  policy  of  the  general 
government  in  relation  to  the  sale  of  the  public  lands,  has  ever 
been  most  liberal,  yet  a  few  restrictions  have  been  imposed 
in  certain  cases  Mhich  it  may  be  well  to  notice.  The  gen- 
eral land  system  makes  little  or  no  discrimination,  but  to  this 
has  been  su])eradded  a  s])ecific  new  fact :  the  sale  or  dis- 
posal of  certain  lands,  in  certain  limited  quantities,  at  a 
reduced  price  or  on  certain  specific  conditions,  for  personal 
use  and  for  actual  settlement  and  cultivation  on]}^  under  a 
series  of  acts  known  as  ])re-emption,  graduation,  homestead 
acts,  etc.  The  Ix-nefits  of  these  acts  are  designed  for  actual 
sottlers  and  exclude  all  persons  not  sui  juris,  such  as  mar- 
ried women,  minors,  and  others  who  are  legally  incapable  of 
contracting;  meaning  of  course  inarried  Avomen  and  minors 
not  unemancipated,  and  constituting  meml)ers  of  the  famil}'- 
of  the  husband  or  father."  Tlie  general  law,  in  so  far  as 
regards  the  United  States,  undoubtedly  enables  aliens  to 
})urchase  the  public  lands  for  cash  and  at  the  ordinary  price, 
subject  only  to  such  limitation  as  the  particular  States  may 
enact.'  The  benefits  of  the  special  laws  above  referred  to, 
however,  apply  only  to  persons  citizens  of  the  United  States, 
or  such  as  have  filed  their  declarations  to  become  citizens,  as 
rc<juired  by  the  naturalization  laws.* 

<j  2i.  Inceptive  Measures  in  the  Abstract.  The  forc- 
g<»iiig  brief  and  fragmentary  review  of  the  ine('i»tive  Staines 
of  title,  but  faintly  expresses  the  vastness  of- our  public  land 
syst(!m  ami  (-(juveys  no  idea  of  its  many  intricate  details  |>ro- 
(hjci'd  by  an  almost  innunieralde  nnnilier  of  acts  of  local  or 
tempoi-ary  a|iplicali<jn,  together  with  theii'  attendant  ruliniis, 

'  SoutlK-rn  I'if.  K.   Co.  r.  Dull,  »  la  Stat,  at  \.Myiv,  019. 

22  F.-.I.  l{«-i>.  IHU.  *1  OpiiiioiiH  Atty,  (ieti.  :J51. 

'  7}  .Stat,  at  LarK<',  t^S. 


13-i  ABSTRACTS    OF   TITLE. 

instructions  and  decisions  by  the  Interior  Department,  and 
adjudicated  cases.'  A  full  and  accurate  knowledge  of  the 
United  States  land  system  is  of  the  utmost  im])ortance  to 
both  examiner  and  counsel,  and  though  it  is  not  usual  or 
necessary  to  incorporate  any  considerable  portion  of  the  in- 
ceptive measures  in  the  aljstract,  yet  Avhen  it  is  rcmeml>ci'cd 
that  the  validity  of  title  to  each  and  every  tract  carved  from 
the  public  domain,  depends  upon  the  accuracy  with  which 
the  first  details  of  transfer  from  the  government  to  its 
grantee  were  executed,  the  im})ortanc3  of  exercising  critical 
care  at  this  stage  of  the  abstract  will  be  apparent.  A  brief 
note  of  the  entry  should  always  form  the  initial  statement, 
or  when  originating  in  grant,  a  corresponding  statement  to 
that  effect,  the  degree  of  fullness  of  narration  being  o]Hional 
witli  the  examiner.  The  various  steps  under  the  pre-emption 
lavrs  prior  to  entry  are  unimportant,  and  shed  no  light  on 
the  title  after  the  certificate  has  issued.  J3ut  with  home- 
stead entries  it  is  different.  Here  the  certificate  does  not 
issue  until  five  years  after  entry  and  during  this  period 
eventful  changes  may  occur.  In  case  the  interest  should  be 
sold  for  the  benefit  of  infant  heirs,  a  certificate  issues  to  the 
purchaser,  and  the  abstract  should  show  substantially  all  tlie 
proceeding  from  entry  to  issue  of  cei'tificate.  All  the 
needed  data  can  be  procured  by  obtaining  a  transcript  of  the 
Eegister's  tract  book,  something  no  well  appointed  abstract 
office  can  dispense  with.  The  tract  book,  further,  has  all 
the  dignit}''  of  other  recorded  evidence  in  matters  affecting 
title."  In  titles  originating  in  grant  or  confirmation  and  not 
followed  by  patent,  much  more  particularity  is  requisite 
than  when  the  patent  is  relied  on  as  the  foundation  of  title, 
and  a  corresponding  fullness  of  narration  and  detail  is 
necessary. 

*  See  Lester's  or  Zabriskie's  Land  '  Russell  r.  Whitehead,  4  Scaiii. 

Laws  for  a  full  exposition  of  these        (111.)  7. 
acts  and  decisions. 


CHAPTER  IX. 

INITIAL   STATEMENTS. 

g  1.  Tlie  government  entry.  §  5.  Town  site  entries. 

2.  Tlie  donative  act.  6.  The  Receiver's  receipt. 

3.  Continued — Section  sixteen.  7.  State  lands. 

4.  Confirmations.  8.  Tlie  root  of  title. 

§  1.  The  Govoninieiit  Entry.  "Whenever  the  abstract 
goes  back  to  the  foundation  of  the  title,  it  should  alwavs 
commence  with  a  brief  note  of  the  original  entry  of  the  land 
at  the  United  States  Land  Olfice  of  the  district  in  which  the 
same  is  located,  giving  the  name  of  the  person  so  entering 
it,  together  with  the  date,  and  any  other  particulars  that 
may  appear  and  are  pertinent.  Should  the  entry,  from  any 
cause,  have  been  canceled  and  re-entry  made,  that  fact 
should  also  be  noticed,  giving  date  of  cancellation  and  re- 
entry. Where  parties  have  negligently  omitted  to  record 
the  Receiver's  receipt  or  patent,  as  is  frequently  the  case, 
this  forms  the  only  item  of  information  relative  to  the  ori- 
gin of  the  title,  and  will  be  of  great  service  to  counsel  in 
iiis  investigati<jns,  as  well  in  determining  the  rigliis  of  thi' 
])arties,  as  in  sujjplying  missing  links  of  evidence.  The 
entry  itself,  if  valid,  gives  the  right  to  the  llcceiver's  certifi- 
cate of  |)ureliase,  and  creates  an  ecpiitable  intei-(^st  in  (he 
land.'  It  is  usel'ul  in  showing  the  ine(^))tion  of  title,  and 
foi-Mis  a  symmetrical  initial  to  IIk;  iiistoiy  wliicli  follows. 
No  particular  form  is  ne<-eessaiy  so  long  as  the  facts  art' 
substantially  stated,  and  the  f<»llowing  example  will  suilice: 

I'lui  lurrtlit'dMt  qudi'trr  (if  Sirtidt)  s/.i\  7'(/irn  one  ni>rt/i, 
Ji'aiuje   tivaxty-ihree^   cant   of  the   .hi    P.  M.   UHia  enteral  hij 

'Levi  V.  Tlioiiii:.s<)ri,  1  Hmv.  17. 

(135) 


13G  ABSTRACTS   OF    TH  I.E. 

lioleH  Van  S<n)f?s,  Maij  1.',,  JSJO,  at  the  U.  S.  Land  Office 
at  Mihvaul-ee,  Wisconsin.  Certificate,  No.  3 Jf.1.  {Ccrtljicate 
canceled,  and  re-cntinj  made,  June  10,  1SJ9.  Cert'tjicate, 
No.  SOO.) 

This,  of  coiii-so,  applies  only  Avlion  tlio  land  has  been  en- 
tered in  the  usual  nuinner,  and  never  includes  the  sections  10 
or  30,  or  such  other  lands  as  may  have  been  selected  by  the 
State  in  lieu  thereof,  and  which  are  commonly  known  as  the 
"  school  sections."  Nor  would  lands  donated  for  specific 
purposes,  as  to  assist  in  the  construction  of  internal  improve- 
ments, etc.,  be  susceptible  of  this  treatment.  In  such  cases 
a  recital  of  the  original  grant  should  constitute  the  initial 
entry. 

§  2.  Tlie  Donative  Act.  When  the  inception  of  title  is 
through  some  grant  of  Congress,  though  the  immediate 
grants  are  from  the  State,  the  prelimiminary  measures  by 
which  the  State  acquired  its  right  to  convey  should  appear 
upon  the  abstract.  A  grant  of  pulilic  land  by  statute  is  the 
highest  and  strongest  form  of  title  known  to  our  law,'  and 
vests  in  the  grantee  all  the  title  which  the  United  States  had 
at  the  time  of  the  grant  or  may  afterward  acquire;  subject, 
however,  to  the  conditions  and  restrictions  appended  thereto, 
and  this,  although  a  patent  may  afterward  issue.^  The  orig- 
inal grant,  or  so  much  as  may  be  necessary  to  show  the 
conveyance,  should  therefore  form  the  initial  statement  of 
an  abstract  of  land  so  derived.  Coupled  witli  this  should 
appear  so  much  of  the  official  action  of  the  State  author- 
ities as  will  show  an  acceptance  on  their  part  and  a  compli- 
ance with  such  conditions  as  may  be  imposed  by  the  gi-ant- 
in<r  act.  These  need  not  be  set  out  at  length;  brief 
references  are  sufficient,  providing  all  the  essential  ste])s  are 
substantially  noted.  Public  grants  to  States  are  usually  of 
specified  quantities  but  of  unascertained  location,  which  is 
determined  by  selection  in  accordance  with  the  terms  of  the 

'  11  Opinions  Atty.  Gen.  47;Dous-  Hall  v.  Jarvis,  C5   111.  302;  Challo- 

man  v.  Hooe,  3  Wis.  4GG.  foux  v.  Duthanne,  4  Wis.  554;  hut 

■^  9  Opinions  Atty.  Gen.  34G;  see  Foley  r.  Harrison,  15  Iluw.  433. 
Tlaoiupson  v.  Prince,   67  111.   281; 


INITIAL    STATEMENTS.  137 

grant.    A  statomont  similar  to  the  following  should  preface 
the  abstract  in  such  cases : 

Section  seven.,  Town  thirty-nine  north,  Range  fourteen  east 
of  the  3d  Principal  Meridian,  icith  other  lands,  was  selected 
bj/ the  Coihmissioner  of  the  General  Land  Ojfice,  under  the 
direction  of  the  President,  as  a  portion  of  those  tracts  granted 
hy  the  United  States  to  the  State  of  Illinoishj  Act  of  Congress 
approved  March  2,  1S27,  entitled  ^^  An  Act  to  grant  a  quan- 
tity of  landto  the  State  of  Illinois  for  the  purpose  of  aiding  in 
opening  a  Canal  to  connect  the  loaters  of  the  Illinois  River 
ivith  those  of  Lcike  Micliiganr 

Selection  approved  hy  the  President  May  21,  1830. 

These  statements  are  usually  short,  from  the  fact  that  the 
title  at  this  stage  is  usually  unquestioned,  and  in  the  older 
States  has  acquired  all  the  elements  of  permanency  from 
long  acquiescence  and  the  aflhixion  of  time.  The  examiner 
will  find  no  dilhculty  in  adapting  internal  improvement  or 
railroad  grants  from  the  hints  above  stated,  and  further 
illustrations  are  not  deemed  necessary.  A  selection  by  the 
State  has  the  eifect  of  an  entry  of  the  land,  and  withdraws 
the  tract  from  further  disposal,  unless  the  selection  shall  be 
subsequently  rejected,  subject,  of  course,  to  the  perfection  of 
any  pre-existing  valid  })i'c-emption  claims;'  and  when  a  i>ar- 
ticular  jmrcel  of  land  is  selected  by  a  State,  through  its  olfi- 
cers  or  other  authorized  agents,  as  a  part  of  a  gross  acreage 
theretofore  granted,  and  such  selection  and  location  are  a))- 
proved  by  the  United  States,  the  title  beciMues  i)erl'ect  and 
attaches  to  the  land  sclectod." 

§  3.  The  Same— Section  Sixteen.  The  iiiiiuediatt' title 
to  .section  sixteen,  and  in  States  west  of  the  Missoui'i  river 
section  t!iirty-six  as  well,  is  derived  from  tiu;  State,  although 
the  original  title  conujs  from  the  Fe<leral  Cioveniuient. 
These  sections,  in  pursuance  of  the  cherished  policy  of  th(5 
governinent,  are  specilic:dly  a]>|>i«»|>i-iati'(i  t<i  the  use  of  coui- 

'  S*-*'  IiiMtniftionH  f'omiiir.  (Ii-n.  '  Mogcrlc  v.  Ashe,  27  C'ul.  322. 

Larxl  Odir..,  Jan.  5,  l>j72. 


138  ABSTRACTS   OF    TITLE, 

mon  schools,  Avliicli  a])))ropi'iatiun  or  reservation  forms  a  pnrt 
of  tlie  coin[)act  by  which  the  State  is  admitted  to  the  Union. 
When  the  hinds  are  surveyed  and  marked  out  the  possessory 
right  of  the  State  attaches,  and,  if  there  be  no  legal  im})edi- 
ment,  becomes  a  legal  title.'  Where  such  section  has  been 
sold  or  otherwise  disposed  of,  other  lands  equivalent  thereto 
and  as  contiguous  as  may  be,  are  granted  in  their  stead,  such 
selection  being  known  as  lieu  lands;  the  act  of  selection  of  a 
section  in  lieu  of  section  sixteen,  is  that  by  which  the  tract 
becomes  appropriated  for  school  purposes."  A  formal  intro- 
duction, therefore,  of  land  in  section  sixteen  or  thirty-six, 
would  read  somewhat  as  follows  : 

Section  sixteen^  Town  one  north,  Range  thirty-one  cast,  was 
granted  hy  the  United  States  to  the  State  of  Michigan  for  the 
use  of  schools,  hy  act  of  Congress,  June  23,  1S36,  providing 
for  the  admission  of  Michigan,  as  a  Stcde  of  the  Union,  and 
accepted  hj  the  State  of  Michigan  hy  act  of  Legislature 
approved  July  25,  1S36. 

Where  section  sixteen  as  returned  by  the  survey  is  foun/1 
to  be  occupied  by  pre-emption  settlements  made  under  the 
law  permitting  settlements  on  unsurv^eyed  lands,  or  where 
the  land  has  been  otherwise  disposed  of,  or  prior  rights 
attached  and  a  selection  of  lieu  lands  is  made,  the  prelin  i- 
nary  note  must  show  the  facts  of  selection,  confirmation,  etc., 
necessary  to  bring  it  within  the  law  vesting  the  title,  thus : 

Tlie  northeast  quarter  of  Section  seventeen,  Town  ten  north. 
Range  twenty-two  east,  was  selected  hy  the  Secretary  of  tlie 
Treasury  in  lieu  of  land  in  Section  sixteeji,hy  virtue  of  an 
act  of  Congress,  approved  June  15,  iSJ^Jf,  and  entitled  "An 
Act  to  authorise  the  selection  of  certain  school  lands  in  the 
Territories  of  l^lorida,  Iowa  and  ^S^isconsin^''  and  was  granted 
hy  the  United  States  to  the  State  of  Wisconsin  for  the  use  of 
schools,    hy    act    of    Congress   approved    August   6,  ISJ^G, 

'  Cooper    V.    Koberts,    18    How.  '  Hedrick  v.   Hughes,  15   Wall. 

(U  S.)  173.  (U.  S.)  123. 


INITIAL    STATEMENTS.  130 

entitled  "  An  Act  to  enable  the  people  of  Wisconsin  Territory 
to  form  a  Constitution  and  State  gomminent^  and  for  the 
admission  of  such  State  into  the  Unioti,^^  and  accepted  hij  the 
State  of  Wisconsi7i  hy  the  Constitution  framed  Fehruary  7, 

§  Jr.  C'oiifiriuatioiis.  In  the  "West  and  Southwest,  the 
title  to  land  rests,  in  many  cases,  upon  confirmed  claims  of 
inchoate  rights  derived  from  the  governments  whicli  owned 
the  land  prior  to  the  conquest  or  cession,  the  method  of  con- 
firmation differing  considerably  Avith  the  locality.  The 
rights  of  parties  claiming  under  titles  from  tlic  Spanish  or 
Mexican  Governments  arc  determined  by  special  commissions 
appointed  for  the  purpose,  or  by  the  United  States  courts, 
and  such  determinations  are  usually  followed  by  patent. 
Mexican  grants  were  made  by  the  governors  of  tlie  Terri- 
tories in  conformity  with  laws  on  that  subject,  and  a  docu- 
ment signed  by  the  governor  served  as  the  basis  of  title, 
while  maps  of  tlie  lands  granted  and  circumstantial  reports 
were  preserved  in  the  archives  of  the  supreme  government. 
A  person  claiming  under  these  grants  is  entitled  to  a  patent 
from  the  United  States  whenever  his  claim  has  been  con- 
firmed by  the  commissioners,  the  District  Court,  or  tlie 
Supreme  Court,  providing  liis  proof  of  confirmation  is  accom- 
j)anifd  by  a  survey  certified  by  the  surveyor  general.  But 
neitlier  the  decree  of  the  courts,  nor  the  survey,  nor  the 
patent,  is  conclusive  on  anybody  but  the  government  and 
the  jiatentee.  Tlie  riglits  of  thii'd  ]iartics  are  exjirossly 
save<l  by  act  of  Congress,  and  those  who  claim  a  title  adverse 
to  the  patentee  have  still  a  chance  to  establish  it  in  t!io 
proj)er  courts  of  the  State."  Whenever  practicable,  the 
decree  of  confirmation,  or  reference  to  it,  together  with  a 
note  of  the  survey  and  ajiproval  of  tlic  surveyor  geiicnil, 
should  foi-m  the  initial  stritcnicnt  and  prrredu  the  [iatciit. 

'  Dnliiiurily  no   rwonl  evidcnro  'Set*  TiistniclioiiH  ninl  OpiiiioriH, 

of  the  fu'  t  of  wliHtion  is  rwjuiivd  Atty.  (md.  Sept.  'J9,  IH.V.*.  Nov.  9, 

iM-yonrl  tin?  •Titrii'h  in  i\n'  Ikk)I(h  of.  1H.VJ;  Mouro  V.  Wilkiuiiun,  \\\  Cal. 

tho  regihUr  of  lliu  local  lund  oHi''-.  Al^. 


140  ABSTRACTS    OF    TITLK. 

The  territory  lying  north  of  the  Ohio  Iliver  and  west  of 
the  Alleghanics  and  extending  to  the  Mississippi,  was 
churned  by  Virginia  previous  to  1770  to  be  within  her  cliur- 
tered  limits,  but  was  not  reduced  to  her  possession  until  the 
war  of  the  Revolution,  Previous  to  that  time,  however, 
numerous  settlements  had  been  made  within  that  ]iortion 
which  at  present  comprises  the  States  of  Indiana  and  Iliin(tis, 
consisting  principally  of  French  iidiabitants  from  Canada, 
who  held  the  hinds  they  occupied  under  concessions  from 
French  and  English  authorities.  The  jiossession  and  titles 
of  these  people  were  respected  by  Virginia,  and  on  her  ces- 
sion of  the  territory  to  the  United  States  she  exi)ressly 
stipulated  for  their  conlirnuition,  which  was  afterward 
elfected  by  suitable  legislation. 

In  the  matter  of  pre-existing  titles,  the  United  States  has 
never  asserted  anj'tliing  more  than  a  sovereign  right  over 
the  subject.  His  property  rights  in  and  to  the  soil  have 
never  been  interfered  with,  and  the  i)atent  adds  nothing  to 
the  force  of  the  confirmation.'  It  is  of  value  as  record  evi- 
dence of  the  possession  and  title  of  the  ancestor,  and  of  the 
recognition  and  confirmation  of  such  title  by  the  United 
States.  It  obviates  controversies  at  law  respecting  the  land, 
and  becomes  an  instrument  of  quiet  and  security.  Founded 
as  it  is  upon  a  survey  of  the  government,  it  removes  all 
doubts  as  to  the  boundaries  of  the  tract,  which  always  arises 
when  their  establishment  rests  on  uncertain  evidence,  yet  it 
adds  nothing  to  the  interest  .vested  by  the  confirmation. 

In  the  legislation  of  Congress,  a  patent  has  a  double 
operation.  It  is  a  conveyance  by  the  governmont  when  the 
government  has  any  interest  to  convey,  but  where  it  is  is- 
sued upon  the  confirmation  of  claim  of  previously  existing 
title  it  is  documentary  evidence,  having  the  dignity  of  a 
record  of  the  existence  of  that  title,  or  of  such  equities  re- 
specting tlie  claim  as  justify  its  recognition  and  confirma- 
tion.    The  instrument  is  not  the  less  ellicacious  as  evidence 

•Langdcau  v.   Hancs,  21   Wall.  521;  Ryan  v.  Carter,  93  U.  S.  78. 


INITIAL    STATEMENTS.  141 

of  provioiisly  existing  riglit,  because  it  also  embotlics  Avords 
of  release  or  transfer  from  the  government,' 

§  5.  To'.vu  Site  Entries.  It  frequently  happened  that 
the  advancing  tide  of  immigration,  not  only  pushed  forward 
the  adventurous  pioneer  and  agriculturist  bej^'ond  the  line 
of  the  public  surveys,  but  in  many  cases  whole  communi- 
ties settled  and  formed  a  town  or  village.  These  settle- 
ments, sometimes  on  surveyed  and  sometimes  on  unsurveyed 
lands,  have  been  provided  for  by  several  acts  of  Con- 
gress. The  first  act,  approved  July  1,  ISO-l,''  jrrovided  for 
founding  of  cities  or  towns  upon  public  domain,  ar.d  for 
entering  the  land  upon  Avhich  cities  and  towns  liad 
already  been  founded.  This  was  supplemented  l)y  the 
act  of  ^[arcli  3,  1805,  which  prescribed  rules  where  the  lots 
were  of  dilTerent  dimensions,  and  not  uniform.  A  further 
act  approved  March  2,  1S07,  authorized  the  entry  of 
])ublic  lands,  settled  upon  and  occupied  as  town  sites  in  trust 
for  the  several  use  and  benefit  of  the  occupants  thereof  in  pre- 
scribed quantities  according  to  the  number  of  inhaljitant^, 
respectively,  in  said  towns.  It  will  thus  be  seen  that  two 
methods  exist  of  acquiring  title  to  land  in  town  sites  at  the 
inception  of  the  town.  By  the  first  method  a  privilege  both 
of  purchase  on  sale,  and  pre-emption  at  minimum  {igures  are 
permitted,  provided  certain  preliminary  conditions  are  com- 
plied with.  The  requisites  consist  of  filing  with  the  recorder 
a  plat  of  the  town,  de.scnl)ing  its  exterior  boundaries  acoon]- 
ing  to  the  lines  of  the  ])ublic  survevs,  when  said  surveys 
have  been  executed.  The  plat  must  also  exhibit  the  naino 
of  the  city  or  town;  the  streets,  squares,  etc.,  together  with 
the  size  and  nK^asnrvmciit  of  each  iiHinicii)al  subdivision. 
The  map  to  be  v<'i*ilied  by  the  oath  of  the  ])arty  acting  for 
(»r  on  b(.'half  of  tiie   town,     AV'hen  the  town   is   within    the 

'  L.'in;;il('aii    v.    HaiuM,  :2l    ^Vv^.  net  iiImivc  nfi  rrcd  to.     Uiiili-r   ll'o 

(U.S.)  OS!:  JIojTow   r.    Wliitiuy,  fonnor  system  no   fitio  c.iuM  lie 

5  Otto  (U.  S.),  5"»l.  jK'cnred  to  town  proiicrty  until  tl  <• 

*  A  town  Hito  law  with  «.'Vory   re-  lorality  h:i<l  Ixlii  j'ni!»r.ic.'<l  liv  tl(> 

BtricU-'l  a|)|ilii-:ition  whh  parsed  in  general  aynlcnj  of  public  hurwy.s. 
]mi,  which  wiw   rt'i'i'aluil    liy   tho 


112  ABSTRACTS    OF    TITLE. 

limits  of  an  organized  land  district,  a  similar  copy  must  l)o 
lllcd  -w'itli  the  Ecgistcr  and  Receiver,  and  a  copy  must  be 
forwarded  within  one  month  after  iiling  witli  tlie  recorder, 
to  tlie  General  Laud  olTice.  Patents  issue  for  all  lots  under 
the  provisions  of  this  act,  the  price  of  the  lots  being  graded 
by  size,  etc.  The  second  motliod  is  under  the  act  (»f  ISOT, 
whicli  ffrants  to  the  inhabitants  of  cities  and  towns  on  the 
pul)lic  lands  the  }>riviloge  of  entering  the  lands  occui)ied  :is 
town  sites  at  the  minimum  ]")rico  of  $1.25  per  aci'e,  througli 
the  corporate  autliorities  of  such  towns  and  cities,  or  the 
ju'lges  of  the  county  courts  acting  as  trustees  for  the  occu- 
pants thereof,  according  to  their  respective  interests.  Either 
method  ma}'  be  resorted  to,  but  the  inhabitants  are  limited 
to  one  or  tlie  other  of  tlie  modes  prescribed.  The  pre- 
liminary measures  attending  the  inception  of  the  title  of 
tOAvn  and  city  propert}''  when  acquired  under  the  acts  above 
noted,  should  apjiear  with  reasonable  degree  of  detail.  If 
by  the  former  method,  the  plat,  or  so  much  as  may  be  nec- 
essary to  show  the  property  in  question,  should  be  given. 
The  preliininar}''  statement  in  this  case  would  consist,  in  ad- 
dition to  the  plat,  of  a  resume,  of  the  steps  taken,  with  dates, 
etc.  In  the  latter  case  it  would  differ  but  slightly  from  an 
ordinary  entrj''.' 

§  6.  Tlie  llccoiver''s  Receipt.  The  receipt  issued  by 
the  Receiver  of  a  district  land  office,  though  constituting 
no  title,  is  evidence  of  an  equitable  interest,  Avhicli,  in  many 
of  the  States,  is  accorded  a  dignity  and  effect  equal  to  a 
complete  investure  by  patent.  Upon  the  strengtli  of  this 
receipt,  large  investments  are  made  and  great  improve- 
ments commenced,  while  the  pro])(.'rty  frequently  passes 
through  many  hands  before  a  patent  has  been  issued.  In 
many  cases  the  patent  is  never  called  for  or  formally  de- 
livered, the  recei])t  being  relied  upon  as  sulliei(mt  evidence 
of  title  to  warrant   the  largest  expenditures  and  the  most 

'  See  acts  a1»ovo  noted;  13  U.  S.  missiomT  An^.  20,  1SG4;  Apr.  26, 
Stat,  at  Lar^o,  343;  13  U.  S.  Stat.  1  SO") ;  Sept.  21,  180,8.  Consult  also 
at  Large,  520;    Instructions  Com-      Lester's  or  Zabrislvie's  Land  La -as. 


INITIAL   STATEilENTS.  143 

ample  covenants  of  title.'  In  a  certain  sense  this  is  true; 
for  though  the  patent  is  the  superior  and  conclusive  evi- 
dence of  le,<?al  title,*  the  receij^t  so  far  precludes  tlie  govern- 
ment as  to  invalidate  a  second  sale  of  tlie  land,  and  the 
patent,  when  issued,  by  relation,  extends  back  to  the  time 
of  the  purcliase  so  as  to  cut  off  intervening  claimants.'  In 
the  courts  of  the  United  States,  however,  an  e(]uitable  title, 
however  strong,  can  not  be  set  up  at  law  to  defeat  the 
legal  title  bv  patent,*  and  an  abstract  which  fails  to  disclose 
puch,  reveals  a  vital  defect  that  should  deter  the  purclinser 
from  consummating  the  sale  until  it  has  been  remedied. 
The  receipt  of  the  receiver  is  jyrima  facie  evidence  that 
the  law  has  been  complied  with,'  and  under  the  rulings  of 
State  courts  has  been  held  to  convey  the  entire  beneficial 
interest,  leaving  nothing  in  the  government  but  a  naked 
trust  of  the  fee,"  while  it  establishes  in  the  person  entitled 
to  it  a  right  to  the  possession  as  against  one  who  shows  no 
title.'  The  instrument  is  very  informal,  and  its  main  pro- 
visions may  be  shown  as  follows: 


Receimr  * 

to 

William  Robinson. 


Dn plicate  receipt.,  No.  5,0SJ^. 
Dated  May  1,  1S39. 
Recorded  May  31,  1830. 
Volume  ''A'' of  deeds,  pa(/e  208. 


AcT^noviledgcs  imymeitt  in  full  {$190.00)  for  the  vortheast 
qnarter  of  Section  ten,  Town  one  north,  Range  iwenty-thriC, 
eit^t  of  3d  P.  M.,  Milwaukee  land  district. 

'  A  patent  issued  in  the  name  of  *  Baiitl  ?•.  "Wolf,  A  ^IcLoan,  .110; 

t'le  J  Ml  re  1  laser  inure.s  to  tlie  benefit  Ilooper  v.  Scluinier,  23  How.  2:i5; 

of  tlie  graiiU.-e  under  a  deed  exe-  Ba^^niell  v.  Broderick,  13  IVt.  43(J. 

(•ut^il    Ix'fore    the   patent    issued:  *  Allison  u.  Hunter,  9  JIo.  4U2. 

ilai^uder  v.  Esniay,  35  Ohio  St.  •  Waters  v.  Busli,  42  Iowa,  2.'5."i; 

221.  and  see  Worth  f.  Branson,  'Jy  U.  S. 

»  Bagnell  r.    Bnxleriek,   13  IVt.  US. 

4:W.  '  McDonald  v.  Edmonds,  44  Cnl. 

'  Stark   V.   Stnrrs,   fl   Wall.    402:  828. 

Ma^n^der  V.  Esniay,  35  Ohio  St.  "If  desired,  say  "United  States, 

221.  \m"  etc. 


144  AIJSTRACTS    OF    TITLE. 

Tlic  forcii^oing  statciiieiit  iiniiuMl lately  foUo^vs  tlic  note  of 
entrv,  and  to  preserve  chronological  sequence,  precedes  the 
patent  wlicn  that  instrument  is  shown.  In  receipts  and 
patents,  no  special  dcsigiuition  of  the  property  with  reference 
to  political  divisions  is  made,  but  same  is  described  as  of  a 
certain  land  district.  This  has  been  held  to  be  a  sullicicnt 
designation,  the  name  of  the  county  not  being  essential,  and 
the  land  district  sutficiently  indicating  the  State.' 

§  7.  State  Lands.  Lands  granted  to  the  States  for 
school  and  university  purposes,  as  well  as  grants  for  internal 
improvements,  are  disposed  of  in  much  the  same  manner  as 
the  ]niblic  lands  of  the  general  government.  The  special 
method  of  their  disposal  is  regulated  l)y  express  statute  in 
each  State,  and  while  tlie  system  in  all  the  States  is  l)ased 
upon,  and  closely  follows  that  pursued  by  the  general 
government,  minor  differences  of  detail  preclude  more  than 
a  general  notice.  In  some  States  the  disposal  of  tlie  land  is 
placed  in  the  hands  of  the  Governor  and  Secretary  of  State, 
who  issue  and  sign  all  patents  emanating  from  the  State;  in 
others  it  has  l^een  placed  in  the  hands  of  a  special  commission, 
to  wdioni  is  given  the  power  of  disposal  and  control  o"  the 
investment  of  the  funds  arising  therefrom.  A  certificate  of 
sale  of  State  lands  is  not  suilicient  to  carry  the  fee,  which, 
by  analogy  to  the  doctrine  of  sales  of  federal  lands,  remains 
in  the  State  until  patent  has  issued  for  same.  It  entitles 
the  ]iurchaser,  however,  to  tlie  beneficial  interest  in  tlie 
premises,  and  is  sufficient  evidence  of  title  to  vest  in  him  the 
same  rights  of  possession,  enjoyment,  descent,  transmission 
and  alienation  of  the  lands  therein  described,  and  the  same 
remedies  for  the  protection  of  said  rights,  as  against  all 
persons  except  the  State,  that  he  would  possess  if  he  were 
the  owner  thereof  in  fee."  The  methods  of  sale  are  too 
widely  divergent  to  inquire  into.  Thus,  in  Wisconsin,  sales 
of  school  lands  are  made  by  the  commissioners  of  school 

'  Mapes  V.  Scott,  91  111.  370.  State,  both  as  to  the  legal  effect 

'  Tliis  matter  is  purely  statutory.  of  certificates  of  purchase,  and  the 

Tlie  reader,  for  greater  certainty,  method  of  conducting  sales. 

will  consult  the  statutes  of  his  own 


INITIAL    STATEMENTS.  145 

and  university  lands;'  in  Illinois  by  the  county  superin- 
tendents/ Each  State  provides  a  method  of  its  own  with 
special  oihcers  to  execute  the  power.  A  certificate  of  sale 
of  State  lands,  like  the  duplicate  receipt  of  the  receiver,  is 
informal  in  substance,  the  main  point  being  the  execution 
by  the  projjcr  statutory  olHcer.  Its  provisions  are  usually 
prescribed  by  statute,  and  should  consist  of  a  description  of 
the  land  sold,  the  sum  ])aid,  and  wliere  only  a  portion  of  the 
purchase  money  is  paid,  the  amount  remaining  due  thereon, 
the  time,  place  and  terms  of  payment,  and  that  if  it  shall  be 
duly  discharged,  the  purchaser  or  his  assigns  shall  be  entitled 
to  a  patent  for  such  land.  As  this  matter,  %vhen  followed 
by  patent,  is  only  introductory,  the  certificate  may  be  shown 
briefly  as  follows: 


State  of  Wisconsin  " 
to 
Abraham  Smith 
Document.  No.300. 


Commissioner' s  certificate^  No.  10.\ 
^  Dated  May  21,.,  1850. 
Recorded  June  i,  1S50. 
Book  "u^l,"  page  J^o. 


Acknowledges  receipt  of  $26.50  in  {part)  payment  for  Lot 
six,  in  Town  one  north,  Range  niiieteen  east,  in  the  north- 
west quarter  of  Section  sixteen  [and  that  said  Abraham 
Smith  will  be  entitled  to  a  patent  therefor  on  payment  oj 
$236.00). 

§  8.  The  "  Root "  of  Title.  The  foregoing  portion  of 
this  chapter  has  reference  only  to  well  ascertained  begin- 
nings of  title,  wliich  may  be  traced  with  little  difficulty 
from  its  source  or  fountain  liead.  In  all  the  States  west  of 
the  AHeghanies,  with  jiossibly  the  excei)tion  of  Kentucky 
and  Tennessee,  tliis  may  be  easily  accomplislicd,  and  a  ])ur- 
chaser  may  reasonably  insist  on  the  production  of  title  from 
the  government.  Such,  liowever,  is  not  always  done,  and 
the  examiner,  from  information  furnished  by  the  vendor, 
prepares  a  ))reliminary  statement,  resting  mainly  on  ti;idi 
tion,  in  wliicli  is  rcciti'd  tlio  condition  and  c<Mirseof  tlic  lillc 

'  H.  S.  WiH.,  \H1H,    100,  cl.ai).  15.  «  U.  S.  111.,  IHTI.  <  liMp.  ^'2. 

10 


I'JrG  ABSTRACTS    OF    TITLE. 

at  some  remote  period,  which  is  f<^no\vo(lbya  regular  exam- 
ination from  tiiat  time,  usually  twenty  years  or  more  prior 
to  the  date  of  the  abstract.  This  is  following  the  English 
precedents,  and  is  not  without  authority  in  the  United  States, 
several  distinguished  American  conveyancers  having  given 
it  their  sanction.  Where  information  is  dilhcult  of  access, 
or  impossible  of  procurement  from  official  or  authentic 
sources,  as  is  often  the  case  in  the  original  States,  such  a 
practice  might  be  followed  as  the  only  available  method, 
leaving  the  keenness  of  counsel  to  detect  flaws,  and  call  for 
further  evidence  on  desired  points;  but  in  the  States  formed 
from  the  territories  where  the  rectangular  system  of  survey- 
ing and  registration  of  conveyances  prevails,  no  good  rea- 
son exists  Avliy  a  complete  abstract  showing  the  ince])tion 
of  title  should  not  be  produced.  Where  a  preliminary  sketch 
is  given  as  forming  the  root  of  title,  the  examiner  should 
carefully  specify  all  his  sources  of  information,  and,  if  con- 
sisting of  hearsay  or  tradition  only,  expressly  disavow 
all  responsibility  for  the  truth  of  the  matters  therein 
recited.  No  other  safe  course  is  open,  and  the  reader  is 
apprised  at  the  outset  of  the  value  to  be  placed  upon  the 
statement.  ^ 


CHAPTER  X. 

CONGRESSIONAL    AND    LEGISLATIVE  GRANTS. 

§  1.     Legislative  grants  generally      §  3.     Construction    of    legislative 
considered.  grants. 

2.     Nature  and  effect.  4.     Formal  requisites. 

§  1.    Legislative  Grants  Generally  Considered.    Not  a 

few  important  titles  in  the  United  States  have  their  foun(hi- 
tion  in  Congressional  or  legislative  grants,  and  confirma- 
tions of  previonsly  existing  inchoate  or  equitable  rights.  A 
recurrence  to  these  is  necessary,  even  thonglT  a  patent  may 
appear,  as  in  many  cases  the  patent  is  only  in  confirmation 
of  ])rior  claims  and  conclusive  only  between  the  sovereign 
and  the  patentee  or  these  in  privity  with  him.  A  grant  of 
land  by  statute  is  the  highest  and  strongest  fonn  of  title 
known  to  our  law,'  and  does  of  itself,  jproprio  mgore^  pass  to 
the  grantee  all  the  estate  of  the  government  excc])t  what  is 
expressly  excepted.*  As  a  primary  conveyance  it  is  not  in 
general  use,  for,  as  a  rule,  the  government  parts  with  its 
title  only  by  patent,  but  when  purporting  to  convey  land  in 
■words  of  present  grant,  it  vests  a  jierfect  and  irrevocal»lo 
title' 

§  2.  Nature  and  Elfect.  Tho  United  States  or  a  Stnte 
may  make  a  grant  of  land  by  a  law  as  effoctnally  as  by  a  jiat- 
ent  issued  in  j)ursuance  of  a  hiw.  In  the  former  case  it  is  the 
direct  act  of  the  government  tlirough  the  Legislature;  in  llu? 
latter  it  is  a  ministerial  act  under  the  direction  of  the  Legisla- 
ture.    A  confirmation  by  law  of  a  claim  of  title  in  [)ul)lie  lanils 

'  11  Ojiinions  Att'y  Ocn.  17.  (U.   S.),  nO;  riioiitfau  V.  KcUliart. 

*  9  Opinioiuj  Att'y  (Jen.  2.^»:}.  2  II..\v.  (IT.  S.)  372;  Swann  v.  Lind- 

»Strothor  v.  Liuiih,  12  IVt.  fU.  Hey.  70  Ala.  007;  Dean  v.  Hittiur, 
.8.)  45.1;  Terrettv.  Taylor,  yCnuu-h      77  Mo,  101. 

(UT) 


14S  ABSTKACTS    OF   TITLE, 

is  to  all  intents  and  ])ui'poscs  a  grant  of  such  lands,' and  \vli(>ro 
one  is  in  possession  of  land,  a  resolve  of  the  Legislature, 
releasing  them  to  him,  passes  a  title  Avithout  any  further  act, 
excei)t  performance  of  the  conditions,  if  any."  An  act  of 
Congress,  containing  provisions  clearly  indicating  an  inten- 
tion to  pass  the  fee,  unconditionally  and  absolutely,  operates 
ipsofacto^  to  vest  the  title  in  the  grantee,"  but  if  the  grant 
be  coupled  with  a  condition  it  will  not  operate  to  vest  the 
title  until  such  condition  has  been  complied  with/  An  act 
of  Congress  granting  land  to  one  person,  is  higher  evidence 
of  title  than  a  patent  of  the  same  land  subsequently  issued 
bv  the  officers  of  government  to  another  person,  and  can  not 
be  defeated  by  such  subsequent  ])atent;'  thus,  titles  derived 
from  the  State,  of  lands  selected  under  the  "  swamp  grant," 
will  take  ])recedence  over  patents  from  the  United  States 
issued  subsequent  to  the  date  of  the  granting  act.'  Legisla- 
tive grants  and  confirmations  are  usually  followed  by  patent, 
the  issuance  of  which  is  specially  provided  for  in  the  grant- 
ing act,  yet  the  patent  in  most  cases  adds  nothing  to  the 
force  of  the  grant,  but  is  merely  confirmatory  of  what  has 
preceded.  If  a  claim  be  made  to  land  with  defined  bound- 
aries the  legislative  confirmation  perfects  the  title  to  the  par- 
ticular tract,  and  a  subsequent  patent  is  only  documentary 
evidence  of  that  title.  If  the  claim  be  to  quantity,  and  not 
to  a  specific  tract  capable  of  identification,  a  segregation  by 
survey  will  be  required  and  the  confirmation  will  then 
immediately  attach  the  title  to  the  land  segregated.'  Anal- 
ogous to  the  rule  which  obtains  in  case  of  patents,  where 

'  Challefoux  v.  Ducliarmo,  4  Wis.  *  Thompson  v.  Prince,  G7  111.  281. 

554;  Dean  v.  Bittnov,  77  Mo.  101;  '  Dousuian  v.  Hooe,  3  Wis.  46G; 

Hall  V.  Jarvis,  G5  111.   302;  Lang-  Megerle  v.  Ashe,  27  Cal.  322. 

deaut'.nanes,21Wall.521;Strother  «  Ruigo  v.    Rotau,   29  Ark.    5G; 

V.  Lucas,  12  Pet.  411;  Field  v.  Sea-  Keller  v.  Brickey,  78  111.  133;  R.  R. 

bury,  19  How.  323.  Co.  v.  Brown,  40  Iowa,  333;  Daniel 

•^  Mayo  V.  Libby,  12  Mass.  339;  v.  Purvis,  50  Miss.  2G1. 

Ryan  v.  Carter,  93  U.  S.  78.  '  Langdeau  v.  Hanes,  21  Wall. 

^Ballance  v.  Tesson,  12  111.  327;  (U.  S.)  521:  Swann  u.  Lindsey,  70 

Grignons,  Lessee,  v.  Astor,  2  How.  Ala.  507;  Dean  v.  Bittner,  77  Mo. 

319.  101. 


CONGKESSIONAL    AND    LEGISLATIVE   GRANTS.  149 

there  are  two  confirmations  or  grants  of  the  same  land,  the 
elder  must  prevail,  and  Avill  give  the  better  title.'  The 
government,  like  an  individual,  has  no  power  to  withdraw  or 
annid  its  grant;  the  first,  if  lawful,  must  stand,  and  the 
second  can  not  operate  as  a  consequence  for  the  reason  that 
the  grantor,  when  it  was  made,  had  no  estate  to  convey.' 

§  3.  Constructiou  of  Legislative  Grant.  A  legislative 
grant  is  an  executed  contract,'  and  as  such  is  within  the 
clause  of  the  Constitution  of  the  United  States  which  pro- 
hibits the  States  from  passing  any  law  impairing  the  obli- 
gation of  contracts.  It  can  not,  therefore,  be  destroyed, 
and  the  estate  divested  by  any  subsequent  legislative  enact- 
ment. The  same  rule  applies  with  equal  force  to  corpora- 
tions as  to  individuals,  and  when  the  State  enters  into  a 
contract  with  a  municipal  corporation,  the  subordinate  rela- 
tion of  the  cor])oration  ceases,  and  that  equity  arises  which 
exists  between  all  contracting  parties.  The  control  of  the 
Legislature  over  the  corporation  can  be  exercised  only  in 
subordination  to  the  principle  which  secures  the  inviolal.)ility 
of  contracts.*  Congressional  grants  are  governed  b}''  the 
same  rules,  and  a  grant  by  Congress  to  a  State  can  not  be 
recalled  at  the  will  of  Congress  any  more  than  a  grant  to 
an  individual.*  Generally,  in  a  conveyance  by  the  sover- 
eign of  property  which  is  usually  the  subject  of  private 
ownership,  the  extent  of  the  thing  granted  is  to  be  ascer- 
tained by  the  rules  of  construction  ap])licable  to  private 
conveyances;  yet  in  construing  a  Congressional  grant,  it 
must  bo  remembered  that  the  act  by  which  the  grant  is 
made  is  a  law  as  well  as  a  conveyance,  and  that  such  clFect 
must  be  given  to  it  as  will  carry  out  the  intent  of  Congress; 
and  that  the  rules  of  the  coniniDii  hiw  must  yield  in  this,  as 

•  Willotv.  Sanff)!-.!.  10  H.av.  70;      S.)fi'2r,;  Din^'man  r.  Pcnpk.,  r,l  HI. 
9  Opinions  Atty.  Gen.  '2'>'.l.  'J<'m. 

*  11  (JpinicnH  Att'y  fl^-n.  47.  *(!r<i^:in    r.   San    Francisco,    IM 
'Tlie     ninKli!unt/»n      Hri.lK*',    3      Cal.  V.io. 

\V:ill.  (U.  S.)  .'il:  Dartmouth  Col-  MJiis.li    r.    Donolnic,    :{1     Mich. 

l.-;;c  V.   Wo<<hvar<l,  4  Wheat.  (U.       1^0:  Ki.c  r.  U.  U.  l'o.  I  HI.  :jr»^<. 


150  ABSTRACTS    OF    TITLE. 

in  all  other  cases  to  the  legishative  ^vill.'  Another  exception 
will  be  observed  in  that  the  ordinarv  rule  construinir  the 
'j:;rant  most  strongly  against  the  grantor  is  here  reversed, 
and  whatever  is  not  given  expressly,  or  very  clearly  implied 
from  the  words  of  the  grant,  is  withheld." 

§4.  Formal  Requisites.  Xo  particular  terms  are  neces- 
sary in  a  grant  by  Congress  or  the  Legislature,"  which  will 
vary  with  the  exigencies  of  each  particular  case.  In  pre- 
paring a  synopsis  of  such  grants  the  essential  features  to  be 
observed  are :  the  title  of  the  act;  the  date  of  passage  or 
ap]jroval;  the  subject  matter,  including  the  granting  Avords, 
in  the  language  of  the  act;  and  the  conditions  or  restrictions 
if  any,  annexed  to  the  grant.  A  practical  example,  taken 
from  the  files  "will  better  serve  to  illustrate  the  matter. 
Peter  Poncin  entered  in  due  form  a  certain  tract  of  land, 
which  entry  was  afterward  canceled  by  the  commissioner 
of  the  General  Land  Ofiice,  but  not  until  Poncin  had  made 
conveyances  on  the  credit  afforded  by  the  entry.  This  can- 
cellation was  afterward  set  aside  by  special  act  of  Congress 
and  the  claim  of  Poncin  confirmed,  with  a  further  direction 
for  a  patent,  which  was  subsequently  issued.  This  land  is 
710W  a  portion  of  the  city  of  St.  Paul,  Minn.,  and  has  become 
very  valuable.  As  the  inception  of  this  title  is  somewhat 
complicated,  a  full  detail  of  all  the  preliminary  steps  is  of 
the  utmost  im]x>rtance,  and  the  abstract  in  this  case  should 
show :  the  original  entry  b}"-  Poncin;  the  subsequent  cancel- 
lation; the  confirmatory  act  of  Congress:  and  finally  the  pat- 
ent; the  mesne  conveyances  by  Poncin  taking  eff'ect  by 
relation.  Examples  of  the  entry  have  been  given;  the  con- 
firmatory act  would  appear  much  as  follows  : 

»R.  R.  Co.r.  R.  R.  Co.,  97  U.  S.       355;  R.  R.  v.  LitchfieM,  2:'>  How. 
491.  8^. 

« Mayor,  etc.,  R.   R.,  26  Pa.  St.  s^^^t^^Liiviiv.  EUeuwood,  4N.  II.  99. 


CONGRESSIONAL    AND    LEGISLATIVE   GRANTS.  151 


Ufu'ttd  States' 


to 


Peter  Ponnn. 


Act  of  Co7i(/ress,  entitled  "An 
act  authctrizing  a  patent  to  he  iscAied 
to  Peter  J\mci?i  for  certedn  lands 
th ere i?i  descr iled.^^ 

Aj>j>roved  Jnly  '27,  1S5J^. 
Ji( corded  August  1,  lSo4-* 
Book  "  C;' page  SCO. 
Enacts,  That  the  entry  of  Peter  Pone  in  of  the   north   half 
of  the  southeast  quainter,  and  the  south   half  of  the   northeast 
quarter  of  Section  36,  in  the  Stillicater  land  district,  Min- 
nesota, cajiceled  hy  the  Commissioners   of  the    General  Land 
Office,  he  and  same  is  hereby  allowed  and  reinstated  as  of  the 
date  of  said  eiitry,  so  that  the  title  to  said  lands  may  inure 
to  the  henejit  of  his  grantees  as  far  as  he  may  have  conveijed 
same;  Provided,  that  the ^mrchase  money  shall  he  again  ptaid 
at  said  land  office,  and  that  thereupon  a  patent  shall  issue  in 
the  name  of  said  Peter  Poncinfor  said  lands. 

Further  enacts.  That  the  Siq^erintendent  of  Puhlic  Schools 
of  Minnesota  he  and  he  is  authorized  to  select  oil ter  land  in 
lieu  there(f. 

This  is  one  of  the  few  conveyances  that  the  examiner  is 
justified  in  placing  on  the  abstract  when  same  does  not 
apjicar  of  record  in  the  county  in  wliicli  tlie  hind  is  situated; 
and  where  the  records  are  silent,  reference  to  other  authen-* 
tic  sources  of  information  must  be  inserted  and  attention 
drawn  to  the  fact  of  non-registry.  This  is  accomplished  in 
the  first  instance  by  referring  to  the  volume  and  page  of 
the  Ignited  States  statutes,  and  in  the  latter  by  a  foot-note, 
as  follows: 

Note. — At  the  date  of  this  c:rav\inati<m.  the  foregoing  in- 
strument is  not  (f  record  in  Ramsey  county,  M innesuta. 

The  foregoing  exam])le  belongs  to  a  class  of  private  and 
local  laws  tt-'chnically  known  as  "  relief"  acts,  oFwhic-h  vast 

'  If  fU-fiir*''!,  this  inriy  n-ad  "  Con-  'Tlusc  acts  raply  nppcrir  of  rcc- 

finiiation  \>y  tin- 1,' riit<'<l  States,"  jw  onl  in  the  county,  in  wliich  iv(nt 

tliiH  ••xumplc  is,  Ktri'tly   HpcakinK,  nfcr  to  the  l'<M)k  ami  jiagc  of   llic 

a  cunfirniation  ratlur  llian  a^^nint.  U.  K.  Slatut^H. 


ir)2  ABSTRACTS    OF   TITLE. 

numbers  have  I)ecn  passc<l  at  difrerent  times  since  tlie  ]uib- 
lic  (loinaiu  has  been  open  for  sale  and  settlement.  As  a 
patent  usuall}'  follows  all  acts  of  this  character  the  neces- 
sity of  exhibiting  them  is  not  so  great  as  in  case  of  conhr- 
mations,  for  the  latter  not  only  serve  as  "  acts  for  relief," 
but  also  operate  as  grants  in  favor  of  the  confirmees.  An 
abstract  of  a  confirmation  need  not  dilfer  materially  from 
the  example  last  shown,  the  main  object  being  to  present 
all  the  operative  parts  of  the  law,  but  should  the  examiner 
desire  a  choice  of  phraseology  in  the  arrangement  of  the 
formal  parts  a  further  illustration  is  herewith  given. 


"An  Act 
to 
"  covfrm  the  title  of 
'•''the  heirs  of  James 
"  Sympson,  deceased^ 
"  to  a  certain  tract  of 
"land  in  the  State  of 
"  Louisiana.^^ 


Act    of  Congress,  entitled  as  in  the 
margin. 

Aj>proved,   Aug.  29,  18Jf2,Vol.  G, 
page  SG9,  U.  S.  Statutes  at  Large. 

Enacts,that  the  heirs  at  laio  of  James 
Sympson,  deceased,  late  of  Clarke 
County,  Kentucky,  he  and  they  are 
hereby  confirmed  in  their  title  to  a 
certain  tract  of  land  situated  at 
the  TROuth  of  the  Aichafalaya,  at  its  junction  with  the 
Mississippi  River,  containing  6Jf.O  acres;  and  as  surveyed 
and  platted  in  the  surveyor  generaV s  office  at  Donaldsonville, 
in  the  State  of  Louisiana,  up>on  the  survey  made  and 
returned  hy  Charles  Morgan,  dated  February  11, 1806,  and 
executed  for  Andy  Robinson. 

Provided  {it  is  stated)  this  confirmation  shall  only  be  con- 
strued as  a  relinquishment  of  the  title  of  the  United  States  to 
said  land,  and  not  to  prejudice  any  superior  or  better  title. 


CHAPTER  XL 

PATENTS. 

§  1.     Patents  defined.  §  7.     Construction. 

2.  Patents     from    the    United         8.     Formal  requisites. 

States.  9.     Patents  from  the  State. 

3.  Continued  —  DeHvery.  10.     Continued. 

4.  General  Land  Office  record.  11.     Formal    re<;iuisites    of    State 

5.  Operation  and  effect.  patents. 

6.  Continued. 

§  1.  Patents  Dofiiiod.  A  patent  lias  been  defined  as  a 
fjrant  of  some  privilege,  pro]>erty,  or  anthorit}^  made  by 
the  government  or  sovereign  of  a  country  to  one  or  more 
individuals,  and  the  tei-m,  as  originally  used  in  England,  is 
said  to  have  signified  certain  written  instruments  emanatino^ 
from  the  king,  and  sealed  with  the  great  seal.  These  in- 
struments conferred  grants  of  lands,  honors,  or  franchises, 
and  were  called  letters  patent  from  being  delivered  o]»en, 
and,  by  way  of  contradistinction  from  instruments  like  the 
French  Lettrea  ds  cachet,  which  went  out  sealed.'  In  the 
United  States,  the  word  is  used  to  denote  those  instruments 
which  secure  to  inventors,  for  a  limited  time,  the  exchisive 
use  of  their  inventions,  but  wlion  used  in  connection  witli 
real  pro])erty,  it  means  the  title  deed  by  which  a  govern- 
ment, either  State  or  Federal,  ccmve^'s  its  lands. 

§  2.  PiitiMits  from  the  llniteil  States.  A  patent  of  the 
United  States  is  the  conveyance  by  which  the  Nation  passes 
its  title  to  the  public  domain  and  is  the  highest  evidence 
of  title  known  to  the  law;  it  is  conclusive  as  against 
the  government,  and  all  claiining  nnder  junior  patents  or 
titles    until    set    aside    or    annulled    by    some  competent 

'  2  I{<.u.  I,:ixv  Diet.  2'JS. 

{1.-,:}) 


154  ABSTKACTS    OF    TITLE. 

ti'iiuina],'  When  delivered  to  and  accepted  by  tlie  grantee, 
it  passes  the  full  legal  title  to  the  land,"  and  carries  with  it 
the  presumption  that  all  the  prerequisites  of  law  have  been 
complied  with.'  P>ut  the  patent  must  show  upon  its  face  a 
regular  issue,  and  a  full  comjjliance  witii  the  foruudities  of 
law,  for  a  patent  forms  no  exception  to  the  rule,  that  the 
legal  title  to  lands  can  not  be  conveyed  except  in  the  form 
])rovided  by  law.'  The  principal  requisites  in  this  respect 
liave  reference  mainly  to  the  execution  and  authentication. 
To  conform  strictly  to  the  letter  of  the  law,  the  ])atent  must 
be  signed  in  the  name  of  the  president,  either  by  himself  or 
his  duly  appointed  secretary,  sealed  with  the  seal  of  the 
General  Land  Odice,  and  countersigned  by  the  recorder. 
Until  all  of  these  have  been  done,  the  United  States  have 
not  executed  a  patent  for  a  grant  of  lands.  Each  and 
every  one  of  the  integral  parts  of  the  execution  is  essential 
to  the  perfection  of  the  patent.  They  are  of  equal  impor- 
tance under  the  law,  and  one  can  not  be  dispensed  with  more 
than  another.  Neither  is  directory,  but  all  are  mandatory, 
and  neither  the  signing  nor  the  sealing,  nor  the  countersign- 
ing, can  be  omitted  any  more  than  the  signing  or  the  sealing, 
or  the  aclcnouiedgment  by  a  grantor,  or  the  attestation  1)}^ 
witnesses,  when  by  statute  such  forms  are  prescribed  for  the 
due  execution  of  deeds  by  private  parties  for  the  convey- 
ance of  lands.' 

§  3.  Coiitiniio<l — Delivery.  Unlike  conveyances  between 
individuals,  a  formal  delivery  of  the  patent  is  not  essential  to 
its  validity,  nor  will  the  non-delivery  defeat  the  grant."    The 

'  United  States  v.  Stone,  2  "Wall.  ■'Mc^Garrahan  v.  New  Idria  ]\Iin- 

525;  Strong  v.  Lelinier,  10  ()l>io  St.  ing  Co.,  9fi  U.  S.  (G  Otto)  P.lrt. 

93;  Stoddard  v.  Cliainbors,  2  Uow.  'McGarrahan  v.  Mining  Co.,  90 

2S4.  U.  S.  310. 

^^Moore  t*.  RiiM'ip.s,  6  Otto,  580;  ''It  is  the  practice  of  the  General 

Leroy  r.  Jan^i.son,  3  Sawyer,  '.)fy^.  I-arnl  OOk-e  to  transtnitpatents,  as 

^ Sweat  r.  Corcoran,  37  Miss.  513;  rapidly  as  completed,  to  the  va- 
Hill  r.  Miller.  30  Jro.  18'?:  Collins t\  rious  local  oflices  for  delivery  on 
P.avtlett,  44  Cal.  371;  Winter  v.  siirrender  of  the  dnplic-ate  reei-ijit 
Croninielin,  ISHow.  87;  Strinj^crr.  or  certificates.  Fririuently.' how- 
Young.  3 1'et.  320.  ever,   they    remain    uncidl'.^d  for 


PATENTS.  155 

importance  attached  to  tlie  delivery  of  the  deed  in  niodevii 
convevanciiiir  arises  lar<ielv  from  the  fact  tliat  the  deed  has 
taken  the  ])hice  of  the  ancient  livery  of  seizin  in  feudal  times, 
when  in  order  to  give  effect  to  the  enfeoffment  of  the  new  ten- 
ant, tlie  act  of  delivering  possession  in  a  pnhlic  and  notorious 
manner  Avas  tlie  essential  evidisnce  of  the  investure  of  the  title 
to  the  land.  This  became  gradually  diminished  in  impor- 
taJice  until  the  manual  deliver}''  of  a  piece  of  the  turf,  and 
many  other  symbolical  acts,  became  snfRcient.  When  all 
this  passed  away  and  the  creation  and  transfer  of  estates  in 
land  by  a  written  instrument,  called  tlie  act  or  deed  of  the 
party,  became  the  usual  mode,  the  instrument  was  at 
first  delivered  on  the  land  in  lieu  of  livery  of  seizin,'  until 
finally  any  delivery  of  the  deed,  or  any  act  which  tijo 
party  intended  to  stand  for  such  delivery,  became  effectual 
to  pass  the  title."  Ko  livery  of  seizin,  however,  was  neccs- 
siiry  of  the  king's  grants,  which  were  made  matters  of 
record,  for  when  the  seal  was  aiiixed  to  the  instrument  and 
enrollment  of  it  was  made,  no  higher  evidence  could  be 
had,  nor  was  any  other  evidence  necessary  of  this  act  or 
deed  of  the  king.  Hence  Mr.  Cruise  in  his  digest  says : 
"The  king's  letters  ])atent  nt;cd  no  delivery;  nor  his 
patents  under  the  great  seal  of  tlie  Duch}'^  of  Lancaster; 
for  they  are  sufficiently  authenticated  and  completed  by 
the  annexing  of  the  respective  seals  to  them."  In  like 
manner  when  a  i)atent  for  public  lands  has  boon  made  out 
and  signed  by  the  Pi'osident,  the  seal  of  the  United  Slates 
affixed,  and  the  instrument  countersigned  by  the  recorder 
of  the  land  ollice  an<l  <luly  recorded  in  the  record  book  kept 
for  that  purpose,  it  boc(»mos  a  solemn  public  act  of  tiie 
government  of  the  TTnite<l  States  an<l  needs  noTurther 
delivery   or  other  authentication    to    inako   it  perfect  and 

ami   on   the  dw-ontiriiiaiuo  of  a  '  Sln'i».  Toucli.  04;  Coke  on  Lilt. 

local  ijil\<v  all  inuli'liviTctl  pat<ntH  206  b. 

remaining  in  it 4  li!(«s  an-  rftnrni-fl  »  t;iuir<h  V.  ttihnan,    15  Wrnd. 

Ui  tin- Cjin<ral  Land    fXlic*- wlicro  O'lO;   Wnrnn   f.  Levitt,    II    rcstiT 

th.-yare   aHw.rl-d.    fil.-d    and    pro-  (N.    IL).   !M0;   liul'ii   v.   Ilal.  !i,   V» 

B«Tvr-<I.     S*-*;   Ili-i).   (ji-nnal    Land  IIjihs.  800. 

Ofllce,  1875. 


156  ABSTRACTS    OF    TITLE. 

valid.'  In  such  case  the  title  to  the  land  conveyed  passes 
by  matter  of  record  to  the  grantee,  and  delivery,  as  in  case 
of  private  individuals,  is  not  necessary  to  give  elTcct  to  the 
granting  clause  of  the  instrument.*  Theoretically,  in  order 
that  the  patent  may  take  effect  as  a  conveyance,  it  is  essen- 
tial that  there  be  an  acceptance  on  the  part  of  the  grantee, 
but  the  acts  required  to  be  done  by  him  in  the  preparation  of 
his  claim  are  equivalent  to  a  positive  demand  for  the  patent, 
and  where  the  patentee  does  not  expressly  dissent,  his  assent 
and  acceptance  are  always  presumed  from  the  beneficial 
nature  of  the  grant.'  Some  confusion  has  arisen  as  to  the 
time  when  a  patent  takes  effect,  that  is,  when  it  becomes 
operative  as  a  conveyance,  and  binding  upon  botli  parties, 
from  not  distinguishing  between  acts  which  bind  the  govern- 
ment and  acts  which  bind  the  patentee.  No  one  can  be 
compelled  by  the  government,  any  more  tlian  an  individual, 
to  become  a  purcliaser,  or  even  to  take  a  gift.  Nor  can  the 
burdens  or  advantages  of  property  be  thrust  upon  him  with- 
out his  assent,  ar.d  th'3  patent  of  government,  like  tlie  deed 
of  a  private  person,  must,  in  order  to  take  effect  as  a  con- 
veyance, and  transfer  title,  be  accepted  by  the  grantee;  yet, 
as  we  have  seen,  the  possession  of  property  is  so  universally 
considered  a  benefit,  that  in  the  absence  of  express  dissent, 
an  acceptance  is  presumed  whenever  the  conve}'ance  is 
placed  in  condition  for  acceptance,  and  this  occurs,  when  the 
last  formalities  required  by  law  of  the  officers  of  the  govern- 
ment are  complied  with.  By  the  execution,  sealing  and 
recording,  open  and  public  declaration  is  made  that,  so  far 
as  the  government  is  concerned,  the  title  to  the  premises 
has  been  transferred  to  the  grantee.  The  record  stands  in 
place  of  the  offer  for  delivery  in  the  case  of  a  private  deed; 
and  the  instrument  is  thenceforth  held  for  the  grantee,  who 
takes  in  such  case  by  matter  of  record.* 

'  Gilmore  v.  Sapp,  100  111.  297.  Gen.     Co4;    LoRoy  v.   Jamison,    3 

'  United    States  v.   Schiirz,    102  Saw.  (C.  Ct.)  3G9. 

U.  S.  378;  LeRoy  v.  Jamison,  3  Saw.  ■*  LeRoy  v.  Jamison,  3 Saw.  (C.  Ct.) 

369;  Houghton  v.   Hardenberg,  53  369;  Green  v.   Liter,  8  Cranch  (U. 

Cal.  181.  S.),  247;  Gilmore  v.  Sapp,  100  111. 

3  Pierre  Mutelle  case,  3  Op.  Atty.  297. 


PATENTS.  157 

§  4.  General  Land  Oflice  Record.  Patents  do  not  come 
within  the  provisions  of  the  recording  hxws  of  the  State, 
where  the  terms  of  the  statute  do  not  specifically  include  them' 
though  it  is  usual  to  record  them  in  the  county  where  the  land 
is  situate,  and  such  registration  as  a  rule  is  expressly  permitted 
by  statute.  The  act  for  the  establishment  of  a  General  Land 
Office  provides  that  all  patents  issuing  from  that  office  "  shall 
be  recorded  in  said  office  in  books  to  be  kept  for  the  purpose," 
and  the  indorsement  of  such  record  will  always  be  found  u]-)on 
the  patent.  This  indorsement  should  always  be  copied  by  the 
recording  officer  when  presented  for  local  registration,  and  a 
minute  of  same  made  by  the  examiner  when  preparing  the 
abstract.  Direct  and  easy  reference  is  thus  made  to  the 
highest  source  of  information  in  case  of  the  mutilation,  loss 
or  destruction  of  the  original,  though,  of  course,  recourse 
may  be  had  to  it  in  other  ways.  This  original  record  is  not 
in  itself  a  grant  of  title,  but  it  is  an  evidence  of  equal  dignity 
with  the  patent,  because,  like  the  patent,  it  shows  that  a 
grant  has  been  made.  The  record  called  for  by  act  of  Con- 
gress is  made  by  copying  the  patent  to  be  issued  into  the 
book  ke])t  for  that  i)urpose,  and  such  record  as  a  matter  of 
evidence  stands  in  the  same  position  and  has  the  same  elfect 
as  the  instrument  of  which  it  purports  to  be  a  copy."  The 
]iublic  records  of  the  departments  of  the  government  are 
n(jt,  like  those  kept  ])ursuant  to  ordinary  registration  laws, 
intended  for  notice,  but  for  preservation  of  the  evidence  of 
the  transactions  of  the  department.  Where  the  countv 
records  fail  to  show  a  patent,  and  no  other  divosture  of 
governmentid  title  appears,  recourse  should  be  had  to  the 
(ieneral  Land  Office,  and  the  claimant's  title  will  be  deter- 
mined, in  the  absence  'of  otlier  circumstances,  by  what  is 
there  sliown.  The  failure  to  record  the  ])atej)t  dcu^s  not 
(k'fcat  the  grant,  but  takes  from  the  ])arty  one  of  the  means 
of  making  iiis  proof.     If  the  jtatcnt  itself  can  still   be  )»i(». 

'  Monin  V.  rulnuT,   i:{  Miili.  :i()7;       iiiK  Co.,  0  f)tl<i,  310;  Suiidsr.  Davis, 
CurtiH  V.  HmitiiiK.  0  Iowa,  r,\U\.  4U  Mich.  11. 

'  McGurruiiaii  v.  New  Mria  Min- 


15S  AnSTR.VCTS    OF    TITLIi;. 

tUiced,  and  it  is  duly  executed  with  all  the  formalities 
reciuired  by  law,  the  ]utentee  and  bis  grantees  may  still 
maintain  tbeir  rights  under  it.  A  i)erf('Ct  record  of  a  perfect 
patent  proves  the  grant,  Ijut  a  perfect  record  of  an  imper- 
fect patent  or  an  imi)erfect  record  of  a  perfect  patent  has  no 
such  effect.  In  such  case,  if  a  })erfect  jiatent  has  in  fact 
issued,  it  must  be  proved  in  some  other  way  than  l)y  the 
record.  The  record  of  the  patent,  analogous  to  tlie  doctrine 
of  registration  under  State  laws,  is  treated  as  presum[)tive 
evidence  of  its  delivery  to  and  acceptance  by  the  grantee.' 

§  5.  Operation  and  FJrcct.  A  patent  is  a  complete  ap- 
propriation of  the  land  it  descril)es,^  and  passes  to  the  patentee 
all  the  interest  of  the  United  States,  whatever  it  may  be,  iu 
everything  connected  with  the  soil,  or  forming  any  portion 
of  its  bed,  or  fixed  to  its  surface;  in  short,  in  everything  em- 
braced within  the  term  "  land."  '  It  is  conclusive  evidence 
of  the  right  of  the  patentee  to  the  land  described  therein, 
not  onh'  as  between  himself  and  the  government,  but  as  be- 
tween himself  and  a  third  person,  who  has  not  a  superior  title 
from  a  source  of  paramount  proprietorship.*  "When  issued 
to  a  confirmee  of  a  foreign  grant,  it  operates  like  the  deed  ot 
any  other  grantor,  and  passes  only  such  interest  as  the  govern- 
mant  possessed,  the  deed  taking  effect  by  relation,  from  the 
initiation  of  the  series  of  proceedings  for  confirmation  and 

'  McGaiTahan  v.  New  Idria  Min-  pertained  to  tlie  king  at  common 

ing  Co.  ,6  Otto,  316;  LeRoy  v.  Jam-  law,  coniprehended  not  only  those 

ison,  3  Sawyer,  369.  rights  which  relate  to  the  political 

-Stringer's  Lessee   v.  Young,  3  character  and  authority  of  tlie  sov- 

Pet.  320.  ereign,  but  also  those  which  are  in- 

3  Fremont  v.  Flower,  17  Cal.  199.  cidental  to  his  regal  dignity,  and 

According  to  the  common  law  of  may  be  severed  at  pleasure  from  the 

England,  mines  of  gold  and  silver  crown  and  vested  in  the  subject, 

were  the  exclusive  property  of  the  It  is  only  to  the  rights  of  the  fir^t 

crown,  and  did  not  pass  in  a  grant  class  tliat  the  States  by  virtue  of 

of  the  king  under  a  general  desig-  then-  sovereignty  are  entitled,  and 

nation  of  lands  ermines.     It  has  mines  of  the  precious  metals  belong 

sometimes  been  a.sserted  that  this  to  the  second  cla.ss.    Moore  i;.  Snow, 

prerogative  right  pa.ssed  to  or  was  17  Cal.  199. 

inherent  in  the  States,  but  this  is  *  Waterman  r.  Smith,  13  Cal.  373. 
an  error.   The  jura  relgalia  wliich 


PATENTS.  150 

of  which  it  forms  the  last  act.'  But  as  tlic  record  of  the  o-ov- 
erninont  of  the  existence  and  validity  of  the  grant,  it  estab- 
lishes the  title  of  tlie  patentee  from  the  date  of  the  grant, 
such  title  depending,  up  to  the  issuance  of  the  patent,  upon 
the  character  of  tlie  grant  and  the  proceedings  of  the  former 
gjvcrnment  in  reference  to  it.'  As  such  record,  with  respect 
to  the  title  of  the  patentee  existing  at  the  date  of  the  cession  of 
the  foreign  territory,  it  is  conclusive  evidence  of  title  in  the 
im::3ntee  at  the  time  the  jurisdiction  of  the  subject  passed 
fr  v:n  the  foreign  government  to  the  United  States.'  "  The 
patsnt,"  says  the  court  in  Leese  v.  Clark,  "  is  the  evidence 
which  the  government  furnishes  the  claimant  of  its  action 
respecting  his  title.  Before  it  is  given,  numerous  proceed- 
in  ;s  are  required  to  be  taken  before  the  tribunals  and  officers 
of  the  government,  and  it  is  the  lact  act  in  the  scries,  and 
follows  as  the  result  of  those  previously  taken.  It  is  record 
evidence  of  the  government's  action.  By  it  the  government, 
lepresenting  the  sovereign  power  of  the  nation,  discharges 
iti  political  obligations  under  the  treaty  and  law  of  nations. 
By  it  the  sovereign  power,  which  alone  coukl  determine  the 
matter,  declares  that  the  previous  grant  Avas  genuine;  that  the 
c'aini  under  it  was  valid,  and  entitled  to  recognition  and  con- 
firmation by  the  law  of  nations  and  the  stipulations  of  tlie 
treaty;  and  that  the  grant  was  located,  or  might  have  been 
Ljtated,  by  the  former  government,  and  is  correctly  located 
by  tlie  new  government,  so  as  to  embrace  the  premises  as 
they  are  surveyed  and  described."  *  A  ])atent  issued  on  a 
confirmed  foreign  grant,  is,  therefore,  in  the  nature  of  a 
conveyance  by  way  of  quit-claim.  It  is  conclusive  only  as 
between  the  ])arties  thereto,  and  is  evi<lenco  that  as  ag;iinst 
the  United  States,  the  validity  of  the  grant  has  been  eslab- 
li.shed.* 

§  0,     ConthiiKMl.     The  Government  of  the  United  States 
has  a  perfect  title  to  the  public  land  ami  an  absolute  and 

'Younti'.  Ildw.-Il,  11  f;:il.    -KM;  TyOt'Ho  r.  ni;irl{,  20  C.il.  :5.s7. 

I.      .    r.  Cl.irk,  IH  Cal.  r^ri.  *  L...-hi'  v.  Clark.  SO  Cal.  HM7. 

•  1.   ■  liiiiiaLln.1  V.  Tlujiiii..uii,  13  *  Ail.im  v.  Noma,  lUU  U.  tj.  501. 
Cal.  11. 


160  ABSTRACTS    OF    TITLE. 

uiKjuiililicd  rii^lit  of  disposal.  Neitlicr  State  nor  tci-ritorial 
legislation  can  in  any  manner  modify  or  alfect  the  right 
which  the  government  has  to  a  primary  disj)osal;  nor  can 
such  legislation  deprive  the  grantees  of  tlie  United  States 
of  the  possession  and  enjoyment  of  the  propci-ty  granted  by 
reason  of  any  delay  in  the  transfer  of  the  title  after  the 
initiation  of  proceedings  for  its  acquisition.*  Whether  the 
title  to  a  portion  of  the  public  lands  has  passed  from  the 
United  States  depends  exclusively  upon  the  laws  of  the 
United  States ;  when  it  has  passed,  it  then  becomes  subject 
to  State  laws."  These  statements  acquire  additional  impor- 
tance from  the  fact  that  in  a  majority  of  the  Western 
States  the  entry  has  been  recognized  as  the  basis  of  a  legal 
title,  and  in  actions  of  ejectment  has  frequently  been  re- 
ceived as  such;  but  in  the  federal  courts  the  patent  is  held 
to  be  the  foundation  of  title  at  law,  and  neither  party  can 
bring  his  entry  before  the  court."  A  purchaser  from  one 
holding  under  a  patent  is  not  bound  to  look  behind  the 
patent  to  learn  if  it  was  properly  issued  to  the  one  entitled 
to  it,'  for  the  instrument  is  in  itself  presumptive  evidence 
that  all  ]>rior  proceedings  are  legal,'  but  every  purchaser  is 
presumed  to  have  notice  of  any  defect  of  title  apparent  upon 
its  face,"  and  is  chargeable  with  notice  of  whatever  the 
patent  recites.'  A  patent  issued  to  a  fictitious  person  is  a 
nullity,*  but  the  heirs  of  a  deceased  person  Avill  take  a  valid 
title  to  the  land  so  conveyed  to  a  deceased  ancestor." 

§  7.  Construction.  It  is  a  rule  of  construction  gener- 
ally applicable  to  public  grants,  that  such  grants  are  to  be 
construed  most  favorably  to  the  public  and  most  strongly 
against  the  grantee;  that  nothing  passes  by  such   grants 

•  Union  I\rill,  etc.,  Co.  v.  Ferries,  Winter  v.  Crommelin,  18  How.  87; 
2  Sawyer,  176;  Gibson  v.  Chouteau,      Strinj^er  v.  Young,  8  Pet.  320. 

13  Wall,  93.  «  Bell  v.  Duncan,  11  Ohio,  192. 

«  Wilcox  V.  Jackson,  13  Pet.  498.  '  United  States  v.  Land  Grant 

^McArthurv.  Browder,  4Whcat.  Co.,  21  Fed.  Rep.  19. 

488;  Fenn  v.  Holmes,  21  How.  481.  «  Thomas  v.  Wyatt,  25  Mo.  24. 

*  Schnee  v.  Schnee,  23  Wis.  377.  «  Galloway  v.  Finley,  12  Pet.  (U. 
»Ban7  v.   Gamble,   8   Mo.    88;  S.)  20. 


PATENTS.  101 

except  what  is  expressed  in  unequivocal  language,  and  that 
whatever  is  not  unequivocally  granted  is  deemed  to  be  with- 
held, nothing  passing  by  implication.  In  late  cases,  how- 
ever, it  has  been  held,  that  this  rule  does  not  appl}^,  at  least 
to  its  full  extent,  to  grants  made  upon  adequate  valuable 
considerations,  but  refers  rather  to  gratuitous  grants  made 
by  the  sovereign  upon  the  solicitation  of  the  grantees.' 

But  little  room  for  construction  will  ordinarily  be  found 
in  patents,  and  when  rules  of  construction  are  invoked,  it  is 
usually  to  determine  matters  relating  to  description.  In 
such  cases  it  has  been  held  that  the  entire  description  of  the 
lands  given  in  the  patent  must  be  taken  together,  and  the 
identity  of  the  land  ascertained  by  a  reasonable  construction 
of  the  language  used.  If,  however,  there  be  a  repugnant 
call,  which,  by  other  calls  of  the  patent  clearly  appears  to 
liave  been  made  through  mistake,  the  patent  will  still  be 
valid  and  the  ambiguity  or  doubt  which  may  arise  may  be 
explained  in  the  same  manner  and  under  the  same  rules  that 
obtain  between  private  grantors  and  grantees."" 

§  8.  Formal  Keiinisites.  As  has  been  seen,  less  formality 
is  required  in  grants  from  the  sovereign  than  in  deeds  between 
individuals,  the  main  essentials  consisting  of  the  proper 
execution.  The  instrument  usually  consists  of  an  acknowl- 
edgment of  payment  for  the  land  granted,  and  a  convey- 
ance in  general  terms,  with  a  description  conforming  to  the 
field  notes  of  the  government  survey.  This,  with  the  exe- 
cution, is  all  that  is  found  in  the  average  patent,  particularly 
when  issued  to  a  purchaser  in  the  regular  course  of  disposi- 
tion according  to  the  prescribed  legal  formulas.  The  ab- 
stract of  such  an  instrument  is  as  simjile  as  the  original,  and 
would  cover  all  the  essential  points  if  made  as  ftUlows: 

'  Langilon   v.  New  York,  93  N.  a.skH.  and  if  Uiat  cfoi'S  not  appt-ar, 

Y.    129;   Cliarl(«  River  Bridge  v.  nothing    sliall  jia-ss  from  tlic  hov- 

Warn-n  Bridge,  7  Pick.  rMaK.s.):Vli.  creign  liy  reason  of  the  uiuertainty. 

Ill  •  reason  gem-rally  given  for  the  '  Boardinan  r.  H<'ed,  fl  Pet.   (U. 

niie  i.H,  tliat  in  a  grant  pnx-eeding  S.):WH;  Mdverv.  Walker,  "J  (.'rancii 

from  t!ieai>plicalionof  tliesulijeet,  (U.  S.),  173. 
thi*  granti-e  ought  to  know  wlial  lie 

It 


102 


ABSTRACTS    OF   TITLE. 


United  States       "]       Patent. 

Cert  iji rate,  No.  520. 
to  [      Bated  Fch.  1,  ISGO. 

Recorded  Feb.  25,  1S60. 
Francis  W.  ^Yalller.  J       Book  15,  page  90. 

Grants,  The  NortJteast  quarter  of  Section  ten,  Tovm  tmo 
North,  Bange  twenty-three^  East  of  3d  P.  J/.,  MiLcvaukee 
Land  Bistrict. 

General  Land  Office,  record  100, 520. 

Where  the  patent  is  issued  in  pursuance  of  a  confirmation 
or  act  of  Congress,  the  matter  of  inducement  Avill  usually  be 
found  immediately  preceding  the  granting  clause,  and  in 
such  case  a  brief  recital  should  be  made  in  the  abstract 
setting  out  the  substance  or  purport  of  the  matter  of  induce- 
ment. 

§  9,  Patents  from  the  State.  The  lands  belonging  to  the 
State  are  distinguishable  into  two  general  classes:  1st.  Those 
which  it  owns  by  virtue  of  grants  from  the  United  States. 
2d.  Those  which  it  owns  by  reason  of  its  sovereignty.  The 
original  thirteen  States  and  Texas  entered  the  Union  as 
landed  proprietors.  In  the  remaining  States,  with  but  a  few 
exceptions,  as  Vermont,  whose  territory  was  claimed  by 
New  York  and  New  Hampshire,  etc.,'  the  original  title  to  the 
soil  was  in  the  general   government.     The  States  entering 


'  Kentucky  was  part  of  Virginia, 
Tennessee  of  North  Carolina,  and 
Maine  was  claimed  by  Massachu- 
setts. Tlie  territory ' '  northwest  of 
the  river  Ohio "  was  originally 
claimed  by  Vu-ginia,  and  was  con- 
vej^ed  to  the  United  States  by  the 
deed  of  cession  of  IMarch  1,  1784, 
as  a  common  fund  for  the  use  and 
benefit  of  all  the  States,  "  upon 
condition  that  the  territory  so 
ceded  shall  be  laid  out  and  formed 
into  States,  containing  a  suitable 
extent  of  ten-itory,  not  less  than 
100,     nor     more    thon   150    miles 


square,  or  as  near  thereto  as  cir- 
cumstances will  admit;  and  that 
the  States  so  formed  shall  be  re- 
publican States  and  admitted  mem 
bers  of  the  Federal  Union,  having 
the  same  rights  of  sovereignty, 
freedom  and  independence  as  the 
other  States."  The  State  of  Geor- 
gia, by  deed  of  cession,  dated 
April  24,  1803,  substantially  the 
same  as  the  Virginia  cession,  con- 
veyed the  territory  forming  the 
present  State  of  Alabama.  Tlie 
remaining  teiTitory  was  acquired 
by  purchase  and  conquest.  Tlie  ces- 


PATENTS.  163 

the  Union  as  sovereign  proprietors,  claim  original  and  ulti- 
mate title  in  all  their  lands,  while  the  class  of  lands,  in  States 
formed  from  the  territories,  belonging  to  the  State  by  rea- 
son of  its  sovereignty,  includes  only  the  shores  of  the  sea, 
and  of  its  bays  and  inlets.  Such  lands,  called  "  marsh  "  or 
"  tide "  lands,  are  such  as  are  covered  and  uncovered  by 
the  ebb  and  liow  of  the  tide,  but  are  susceptible  of  recla- 
mation so  as  to  be  made  valuable  for  agricultural  or 
other  purposes.'  This  doctrine  of  title  by  sovereignty 
also  prevails  in  many  of  the  inland  States,  and  is  ap- 
plied to  the  navigable  streams  upon  the  borders  and 
within  the  boundaries  of  the  State.'  The  State  can  make 
no  disposition  of  the  lands  it  holds  by  virtue  of  its  sovereignty 
]>rejudicial  to  the  rights  of  the  public  to  use  them  for  nav- 
igation and  fishery,  but  it  may  dispose  of  them  for  the 
purpose  of  promoting  the  interests  of  navigation,  or  of 
reclaiming  them  from  the  sea,  where  it  can  be  done  without 
prejudice  to  the  public  right  of  navigation.'  The  title  to 
hiTuls  under  tide  waters  within  the  realm  of  England  was 
bv  the  common  law  deemed  to  be  vested  in  the  king  as  a 
public  trust  to  subserve  and  protect  the  public  right  to  use 

Kions  of  Georgia  and  Virginia  were  under  them.  See  Pollard  v.  Hagan, 
accepted  by  the  Unitol  States,  and  3  How.  (U.  S.)  212;  Froedman  r. 
tiie  municipal  eminent  domain  Goodwin,  1  McAlister,  142;  Ward 
held  as  a  tnist  for  tlie  new  States  v.  Mulford,  33  Cal.  305;  Farrisli  v. 
to  be  formi'd  in  conformity  to  the  Coon,  40  Cal.  33;  Barney  v.  Keo- 
decds  of  cession,  the  details  to  be  kuk,  94  U.  S.  33G;  Sliively  v.  Par- 
rcgidated  by  the  act  of  Congi-ess  ker,  9  Or.  50-4. 
known  aa  the  ordinance  of  1787.  '  People  v.  Morrill,  26  Cal.  336: 
Upon  the  admission  of  the  new  Ward  v.  Mulford,  32  Cal.  365; 
States  nothing  remained  to  the  Simpson  i\  Neil,  80  Pa.  St.  183; 
Uuiti-d  StJites,  according  to  the  C'(jl)urn  j».  Ames,  52  Cal.  385;  Ilin- 
t«rn)H  of  the  agrc«'ment,  but  the  nian  v.  Warren,  «  Oreg.  40S;  Pol- 
public  lands,  and  upon  their  disposjil  lard  V.  Ilagan,  3  How.  (U.  S.)  212. 
the  jxtwer  of  tlie  general  govern-  '  Musser  r.  Hershey,  43  Iowa, 
ment  over  tliew- lands,  as  property,  350;  liar  ney  v.  Keokuk,  94  U.S. 
alw>  fi'-.uvt],  leaving  tin-  Slate  in  32-t;  lU-nson  t'.  Morrow,  61  Mo. 
tm(liK[itit<'d  Hov»Tei;inty,  including  345. 

the   ownerHhip   nml    <lominion   of  ■'\V;ir.l    r.  Mulfc.rd,  32   ("al.305. 

Iter  navigable   wutcrd  and  the  Huil 


UW  ABSTRACTS    OF   TITLE. 

tliom  as  common  liiglnvays  for  commerce,  ti-ade  and  inter- 
course. The  kins:,  by  virtue  of  his  pro])rietary  interest, 
could  grant  the  soil  so  that  it  should  become  private  prop- 
ertv,  but  his  grant  was  sul)jcct  to  the  paramount  right  of 
pul)lic  use,  which  he  could  neither  destroy  nor  abridge.  The 
laws  of  most  nations  have  sedulously  guarded  the  public  use 
of  navigable  waters  Avithin  their  limits  against  infringe- 
ment, subjecting  it  only  to  such  regulation  by  the  State,  in 
the  interest  of  the  public,  as  is  deemed  consistent  with  the 
preservation  of  the  public  right.'  The  title  to  lands  under 
tide  waters  in  this  country,  which  before  the  Revolution 
was  vested  in  the  king,  became,  upon  separation  of  the 
colonies,  vested  in  the  States  within  which  the}"  were  sit- 
uated. The  people  of  the  State,  in  their  right  of  sovereignty, 
succeeded  to  the  royal  title,  and  through  tlie  Legislature 
may  exercise  the  same  powers  which,  previously  to  the 
Revolution,  could  have  been  exercised  by  the  king  alone,  or 
by  him  in  conjunction  with  parliament,  subject  only  to  those 
restrictions  which  have  been  imposed  by  the  Constitution  of 
the  State  and  of  the  United  States." 

g  10.  State  Patents — Continiieil.  It  will  be  seen,  there- 
fore, that  in  the  Colonial  States  and  the  territor}^  claimed 
by  them,  as' well  as  in  the  State  of  Texas,  the  original  and 
paramount  source  of  title  is  the  State.  In  all  the  States 
formed  from  national  territory,  except  as  the  sovereign 
prerogative  above  mentioned  has  been  asserted,  the  patent 
from  the  State  is  only  a  mesne  conveyance  of  an  older  and 
pre-existent  title,  depending  for  its  validity  upon  the  pre- 
liminary steps  by  which  the  State  acquired  ownership  to 
the  soil.  In  tide  water  States,  notably  Alabama,  California 
and  Oregon,  where  the  doctrine  of  original  title  by  virtue 
of  sovereignty  has  been  strongly  asserted,  a  State  patent  or 
grant  may  in  some  cases  form  the  foundation  of  a  good  and 
unassailable  title;  but  in  the  interior  as  well  as  in  States 
bordering  on  the  great  lakes,  Avhere  no  perceptible  tide  is 

'Andrews,    J.,     in     People    v.  '^  Lansing  r.  Smith,  4  Wend.  9. 

Ferry  Co.,  68  N.  Y.  71. 


PATENTS.  1G5 

found,  the  State  while  exercising  dominion  over  its  "water 
ways,  has  usually  conceded  the  ownership  in  the  soil  covered 
tliereln'  to  the  adjacent  ri})arian  proprietor,  who  would  liold. 
whatever  might  be  the  mesne  conveyances,  from  the  United 
States  in  virtue  of  the  original  di vesture  by  patent  grant,  or 
otherwise. 

§  11.  Formal  Reiiuisitos  of  State  Patents.  The  for- 
malities to  be  oljserved  in  patents  emanating  from  the  State 
have  reference  to  tlie  statutory  re(i[uisites  rehxtive  to  issuance 
and  execution,  and  v\-hile  the  instruments  closely  follow  the 
forms  adopted  by  the  naticjual  government,  minor  differ- 
ences of  detail  will  be  found  varvino*  with  tlie  localitv. 
Ordinarily  a  State  patent,  in  analogy  to  those  issued  by  the 
general  government,  is  under  the  hand  of  the  chief  magis- 
trate, and  authenticated  by  the  great  seal.  Such  a  course 
is,  however,  by  no  means  uniform,  the  statute  often  pre- 
scribing other  and  dilferent  formalities.  Thus,  in  "Wiscon- 
sin, the  commissioners  of  school  and  university  lands  are 
alone  authori/.ed  to  convey  such  lands,  and  that  power  can 
not  be  transferred  to  others;  hence  a  patent  issued  by  the 
Governor  and  Secretary  of  State,  although  in  conformity  to 
the  general  statute  regulating  patents,  Avould  be  void  and 
inoperative  to  pass  the  title  to  that  particular  chiss  of  lands.' 
Thus  it  will  be  seen  that  in  State,  as  in  national  patents,  the 
execution,  according  to  prescribed  regulations,  is  after  all 
tlie  main  point  of  insjiectionin  abstracting  these  documents. 

» McCabee  v.  MuzzuchfUi,  13  Wis.  478. 


CHAPTER  XII. 


SX7RVEYS,   TLATS  AND  SUBDIVISIONS. 


§  1.  Gonoral  roinnrks.  g  6.  Plats  and  sulwlivisions. 

2.  Division  ol' the  public  domain,  7.  Funnal  rt-quisitet;. 

3.  Subdivision  of  sections.  8.  Effect  of  registration. 

4.  Rectangular  siu'veying.  9.  Vacation  and  cancellation. 

5.  Meander  lines.  10.  Dedication  by  plat. 

§  1.  Cweiieral  Rem  arks.  A  fair  knowledge  of  the  princi- 
ples of  surveying  is  indispensable  to  good  work  on  the  part 
of  examiner  or  counsel.  In  tracing  devious  ]iaths  and  intri- 
cate windings  of  the  title  through  tlie  media  of  uncertain, 
ambiguous  or  faulty  descriptions,  as  well  as  where,  by  minute 
subdivisions,  and  irregular  sliaped  parcels,  the  proper  location 
of  the  land  becomes  a  matter  of  careful  measurement  or  cal- 
cidation,  this  knowledge  will  be  found  of  the  utmost  impor- 
tance. A  general  knowledofe  of  the  f^overnmental  divisions 
of  the  county  is  indispensable  to  intelligent  inquiry,  and  the 
same  is  generally  true  of  subsequent  subdivision  either  by 
public  authority,  as  case  of  town  plats,  or  subdivisions  by 
individuals.  "Where  the  examination  is  complicated  by  {iny 
questions  arising  from  description,  counsel  should  first  fa- 
miliarize himself  with  the  relative  position  of  the  land,  and 
when  the  examiner  has  furnished  no  plats,  can  greatly 
facilitate  his  labors  by  the  use  of  sketch  maps  prepared  by 
himself. 

§  2.  Divisions  of  tlie  Public  Domain.  Tlie  public  lands 
of  the  United  States  are  ordinarily  surveyed  into  rectangular 
tiucts  bounded  by  lines  conforming  to  the  cardinal  points,  ac- 

(1G6) 


SURVEYS,  TLATS    AXD    SmDITISIONS.  IGT 

coixling  to  the  true  meridian.'  The  hirgest  of  these  divisions, 
called  a  township,  is  a  body  six  miles  square,  having  reference 
toanestablished  principal  base  line  on  atrue  parallel  of  latitude, 
and  to  alongitudc  styled  a  princijxd  meridian,  and  contains  (as 
near  as  may  be)  23,040  acres.  The  townships  are  subdivided 
into  thirty-six  tracts,  each  one  mile  square,  called  sections, 
and  containing  (as  near  as  may  be)  (UO  acres.  An}'-  number 
or  series  of  contiguous  townships  situate  north  or  south  of 
each  other  constitute  a  range.  As  it  is  impossible  to  strictly 
follow  the  letter  of  the  law  in  regard  to  the  public  surveys, 
owing  to  the  convergency  of  the  meridians,  an  inequality 
develops,  increasing  as  the  latitude  grows  higher.  The 
excess  or  deficiency  is  added  to  or  deducted  from  the  western 
or  northern  ranges  of  sections  or  half  sections  in  each  town- 
ship according  as  the  error  may  be  in  running  the  line  from 
east  to  west  or  from  north  to  south.  The  townshi])s  bear 
numbers  in  respect  to  the  base  line,  either  north  or  south  of 
it,  and  the  ranges  bear  numbers  in  respect  to  the  meridian 
line  according  to  their  relative  position  to  it  either  east  or 
west.  The  sections  are  the  smallest  tracts,  the  out  bound- 
aries of  which  the  law  requires  to  be  actually  surveyed. 
Their  minor  suljdivisions  are  defined  by  law  and  are  desig- 
nated by  imaginary  lines  dividing  the  sections  into  four 
quarters  of  lOO  acres  each,  and  these  in  turn  into  quarter- 
quarter  sections,  of  4:0  acres  each.  The  thirty -six  sections 
into  which  a  township  is  subdivided  are  num1)ered  consecu- 
tively commencing  with  section  one  at  tlie  northeast  an<'le 
and  i)roceeding  west  to  section  six;  thence  i)rocceding  east 

'  Tliisfivstem,  which  is  easontially  form  of  States,  provided  in  VirjLrin- 

Atncritan  in  all  its  details,  wa.s  re-  ia's  deed  of  ccKsion  of  lior  woHtern 

I>ijrtod   from   a  committee  of  Con-  territory,  may  liave  influenced  Mr. 

Kr<-s.s  May  7th,   17K1.     Tliom.-w  Jef-  Jelfei-son  in  favor  of  as()uaro  form 

ffnon  was    the  chairman  of  thia  of  surveys,  althou^li  in  the  cohtny 

conjinittee,  and  to  him  the  credit  of  Gcor;j;ia  a  square  form  of  sur- 

of  itH  invention   is  usually  accord-  veyin;;  liadhrvn  in  vo^^ie  in  eleven 

ed,  hut  iMiyond  the  committee's  re-  t'^JWHships    for    lifty    yeare    prior 

jjort.    \\n  ori^^in    is  not    fxtsitively  thereto. 
known.     It  in  thought  the  txpiuro 


108 


ABSTRACTS    OF   TITLE. 


the  sections  number  to  twelve  and  so  on  alternately  until 
the  nuniher  thirty-six  in  the  southeast  angle.'  The  accora- 
panvinjr  iliajrrani  will  serve  to  illustrate  the  method  oi'  run- 
ning  the  exterior  lines  of  to\vnshi})s  and  sections. 


N 

Town  1  "N'orlh. 

6 

5 

4 

3 

2 

I 

7 

8 

9 

10 

1 1 

12 

4J 

i8 

17 

16 

15 

H 

13 

19 

20 

21 

22 

23 

24 

30 

29 

28 

27 

26 

25 

31 

32 

33 

34 

35 

36 

E 


li^sjh:  Li:NriH 


'  See  Zabriskie's  or  Lester's  U.  S. 
Land  Laws  for  full  details  of  these 
important  topics.  The  lines  and 
corners  of  land  established  by  the 
government  surveys  when  it  was 
first  surv'eyed,  platted  and  recorded 
must  control,  when  they  can  be 
ascertained  and  identified;  but 
wlien  such  lines  and  comers  are  in 
doubt,  and  a  matter  of  much  uncer- 
tainty and  dispute,  the  parties  may 
settle  them  and  thus  end  the  dis- 
pute; and  when  they  have  agreed 


upon  the  position  of  such  bound- 
ary, and  have  acted  upon  it  as  the 
tnic  line,  they  are  estopped  from 
assertmg  another  and  a  different 
line:  Yates  v.  Shaw,  24  111.  867; 
Thomas  v.  Sayles,  63  111.  363.  But 
parties  holding  simply  an  agree- 
ment that  might  ripen  into  an 
equity  can  not  make  agreements  as 
to  surveys  which  will  be  binding 
on  a  subsequent  holder  of  the  legal 
title:  Sawyer  v.  Cox,  63  III.  130. 


SURVEYS,    PLATS    AXD    SUBDIVISIONS. 


IGO 


The  official  township  phits,  of  which  mention  has  already 
been  made,  furnish  all  the  information  necessary  to  a  thor- 
ough iinderstamling  of  each  ]iarticular  township,  and  show, 
in  addition  to  a  general  topographical  delineation  of  the 
surveyed  territory,  the  exact  area  of  each  section,  excesses, 
deficiencies,  meanders  of  navigable  streams,  islands  and 
lakes  and  all  other  details  necessary  for  surveying  or  sub- 
division; as,  "witnesses,  monuments,  section  and  quarter 
section  corners,  etc. 

§  3.  Subdivisiou  of  Sections.  Though  the  section  is 
the  smallest  division  of  public  land,  the  lines  of  which  are 
actually  run  by  the  government  surveyors,  smaller  divisions 
are  contem])latcd  by  law  and  provision  is  always  made  for 
their  ready  ascertainment,  which  is  done  by  running  true 
lines  from  one  established  point  to  another.  These  legal 
subdivisions  vary  from  a  quarter  section,  containing  lf!0 
acres  to  a  "  quarter-quarter  "  section,  containing  but  4:0  acres. 
The  sha])e  and  area  of  the  sectional  subdivisions  will  be 
better  understood,  perhaps,  by  reference  to  the  foUuwing 
diagram : 


W 


40  A 

N  W  14: 
—  N-W 


40  A 


40  A 


SEi^ 

40  A 


640.- 


s  w  '4 

J  00  A 


SO  A 

N  ^ 
s  J^ 

80  A 


so  A 


E  I 


/4 

AO  A 


E 

\  bcc.  Corner. 


Sec.  Corner. 


—    —    —    —80  chalM  or  0110  mitt. 


170  AKSTRACTS    OF    TITLE. 

The  above  illustration  contciiijilatcs  only  an  ordinnrv 
survey,  where  no  obstacles  intervene  to  interrupt  the  sym- 
nietrv  of  the  ma]),  or  interfere  with  the  running  of  theliius, 
nor  docs  it  jiroviile  for  deficiencies  or  excesses,  which  will 
frequently  occur  in  sections  1,  2, 3,  4,  5,  6, 7,  IS,  19,  30  and  31 , 
the  greatest  discrepancy  being  found  in  section  0,  The  legal 
]>rcsumption  is,  however,  that  the  section  contains  G-tO  acres. 

The  section  and  quarter  section  corners  are  established  as 
indicated  in  the  diagram;  the  half  quarter  sections  are  not 
marked  in  the  field,  but  are  regarded  by  the  law  as  points 
intermediate  between  the  half  mile,  or  quarter  section 
corners.' 

Where  navigable  lakes,  streams,  etc.,  intercept  the  surveys, 
they  produce  fragmentary  divisions  known  as  "  fractional  " 
sections,  quarters,  etc.,  the  divisions  of  a  fractional  section 
Ijeing  also  known  as  "  lots."  Meander  corner  posts  are 
established  at  all  those  points  where  township  or  section 
lines  intersect  the  banks  of  such  rivers,  ba3'^ous,  lakes,  or 
islands  as  are  by  law  directed  to  be  meandered,  and  the 
courses  and  distances  on  meandered  navigable  streams 
govern  the  calculations  wherefrora  are  ascertained  the  true 
areas  of  the  tracts  binding  on  such  streams.  In  the  sale  of 
such  fractional  tracts  or  lots,  which  always  conform,  as  near 
as  may  be,  to  the  size  and  shape  of  the  regular  subdivisions, 
the  specific  lot  is  sold  by  the  acreage  as  returned  by  the 
government  surveyors,  and  reference  is  always  made  to 
the  field  notes  and  plats  for  certainty  of  description, 
l)Oundary,  etc.  The  annexed  diagram  will  serve  to  illus- 
trate the  subject  more  fully: 

•  Act  of  AprU  24,  1820. 


SUKVEYSj  PLATS    AND   SCBDITISIONS. 


N 


171 


W 


N  E  J  N  AY  i 

^       40  A 

40  A 

JCO  A 

'           2 
1  13.73  A 

1 
33.74  A 

ij 

~%     ' 

#  ^^ 

7,3y 

1        3 

]   3G  S3  A 

4 

3-/.  JO  ,f 

SE-^ 

/s  W  J  S  W  J 

S  E  J  S  W  J 

JCO  ^ 

1        40  A 

1 

40  ^ 

E 


Interspersed  throughout  the  rectangular  surveys  of  the 
public  domain,  are  surveys  of  numerous  bodies  of  land  of 
anomalous  and  irregular  foi-ms  covered  by  titles  known  as 
''Private  Land  Claims,"  w]iiv»hthe  government  of  the  Uniteil 
States,  under  treaty  obligations,  or  fnjni  other  consider- 
ations, has  confinncil.  These  titles  derive  their  origin  fioin 
rigiits,  acquired  under  the  sovereignity  which  once  hehl 
dominion  over  the  territory  now  constituting  part  of  the 
Union,  and  from  donations  under  the  laws  of  the  United 
States.  Tlie  surveys  of  such  titk's  are  in  strict  acconhiiice 
in  measurement,  form,  and  extent  with  the  land  system  of 
the  trovernmont  from  which  the  titles  art;  derived. 

In  comjtiling  the  al)stract  it  is  advisablu  to  i)re(ix  lo  th(^ 
Rjime  a  sketcii  of  the  government  survey  ius  shown  by  tho 
oilicial  township  plats,  and  i>arlieularly  should  this  be  done 


172  ABSTRACTS    OF    TITLE. 

when  the  siil>ject  of  the  oxainination  consists  of  a  frac- 
tional section  or  h)t.  Such  sketch  will  1)0  of  great  service 
to  counsel  and  serve  to  illustrate  and  dcline  the  boundaries 
of  such  land  far  better  than  any  descrii)tion  can.  AVhere 
land  binds  upon  a  navigable  meandered  stream  or  lake, 
accretions  and  relictions  will  occur,  materially  changing  the 
shore  line,  and  here  the  sketch  will  prove  very  serviceable 
in  fixing  the  original  boundaries,  as  well  as  in  determining 
present  rights. 

§  -i.  llectaiigular  Surveying.  The  rectangular  system 
of  surveying  above  stated  has  now  been  in  operation  in  the 
United  States  for  over  one  hundred  years.'  ItS' advantages 
over  other  methods  consist  in  its  economy,  simplicity  in  the 
process  of  transfer,  and  brevity  of  description  in  deeding 
the  ]n'emises  by  patents,  and  in  the  convenience  of  refer- 
ence of  the  most  minute  legal  subdivision  to  the  corners 
and  lines  of  sections,*  the  convenient  mode  of  subdividing 
sections  with  a  view  to  economy  and  to  facilitate  sales  of 
small  tracts  being  an  essentially  marked  feature.  The  prin- 
cipal base,  princij)al  meridian,  standard  ]iarallels  and  guide 
meridians  constitute  the  framework  of  the  rectangular 
system  of  public  surveys,  and  there  are  at  present  per- 
manently established  twenty-three  principal  bases  and 
thirty  princij^al  meridians,'  controlling  the  public  surveys 
in  the  land  States  and  territories. 

Ordinarily  the  public  surve3's  are  governed  bvone  princi- 
pal base  and  principal  meridian,  but  in  a  few  districts  and 
on  the  Pacific  slope,  a  number  of  different  initial  points  are 
necessitated  by  abrupt  mountains  throughout  the  district. 
The  lines  of  public  surveys  over  level  grounds  are  measured 
with  a  four-pole  chain  of  sixty-six  feet  in  length,  eighty 
chains  constituting  a  mile;  but  where  the  features  of  the 

'It  was  formally  adopted   May  ^  These  arc  divided  into  six  num- 

20,  1785.  erical  meridians  and  twenty-four 

'  See  Zabriskie's  Land  Laws,  508;  independent  nii  e  r  i  d  i  a  n  s  named 

Instructions  Commr.   Gen.    Land  after  the  locality  wliich  they  con- 

Omce,  Uaj  3,  1881;  Government  trol. 
Manuel  of  Surveying,  1883. 


eUKVEYS,  PLATS    AND    SURDIVISIONS.  173 

coiintrv  are  broken  ami  hilly,  a  two-pole  chain  is  used. 
The  lines  and  corners  thus  run  are  marked  and  perpetuated 
by  blazing  trees,  stones,  mounds  or  other  monuments,  the 
witness  monuments,  bearings  and  distances  being  ascer- 
tained and  described  in  the  field  notes.  The  boundaries 
and  contents  of  the  several  sections  and  quarter  sections  are 
ascertained  in  conformity  to  the  following  principles: 
"  The  boundar}'  lines  actually  run,  and  marked  in  surveys 
returned,  shall  be  established  as  the  proper  boundar}''  lines 
of  the  sections  or  subdivisions  for  which  they  were  in- 
tended; and  the  length  of  such  lines,  as  returned,  shall  be 
held  and  considered  as  the  true  length  thereof;  and  the 
boundary  lines  which  shall  not  have  been  actually  run  and 
marked  as  aforesaid,  shall  be  ascertained  by  running 
straight  lines  from  the  estal)lishcd  corners  to  the  opposite 
corresponding  corners;  but  in  those  portions  of  the  frac- 
tional townships  where  no  such  opposite  corresponding 
cornel's  have  been  or  can  be  fixed,  the  said  boundary  line 
shall  be  ascertained  bv  runnini}:  from  the  established  cor- 
ners  due  north  and  south  or  east  and  west  lines  (as  the  cas3 
may  be)  to  the  water-course  or  other  external  boundary  of 
such  fractional  township."  ' 

§  5.  MeanJer  Lines.  Meander  lines  are  run,  in  survey- 
ing fractional  portions  of  the  public  lands  bordering  on  nav- 
igable rivers,  not  as  boundaries  of  the  tract,  but  for  the  pur- 
pose of  defining  the  sinuosities  of  the  bank  of  the  stream, 
and  as  the  me:ins  of  ascertaining  the  quantity  of  the  land  in 
the  fraction  subject  to  sale,  and  which  is  to  be  paid  for  by 
the  purchaser.'  Fractional  divisions,  made  so  by  the  inter- 
fer(;nce  of  water,  are  designated  and  sol<l  l)y  the  numb  -i-s 
attached  to  the  lots,  and  reference  is  always  luid  to  tlie  notes 
of  survey.  The  water  in  these  notes  is  al  ways.tlie  boundary, 
and  where  tlierc  exists  a  diircrence  l)etween  the  meandered 
line  as  run  and  the  existing  line  of  tlie  water-coui'se,  the  lat- 
ter and  not  the  former  is  to  ))e  consi<lered  the  true  boiiml- 

'  1  Suit,  at  Uir^'f.  nO;  2  Stat,  at  ♦  R.  H.  Co.  v.  Siliuriiuir,  7  Wall. 

I^rgf,  73;  2  do.3iy.  (U.  S.)  273. 


ITrt  ABSTRACTS    OF    TITLE. 

arv.'  Yet,  though  a  meandered  line  is  generally  considered 
as  following  the  windings  of  a  stream,  the  question  whether 
it  does  so  or  not  may  be  determined  by  evidence  aliunde,  and 
the  mere  fact  that  it  is  run  and  designated  upon  the  plats  as  a 
meandered  line  is  not  conclusive  against  the  government,  and, 
it  has  been  held,  that  an  entry  of  government  land,  bounded 
by  a  meandered  line,  does  not  include  land  lying  at  the  time 
between  such  meandered  line  and  the  bank  of  the  river.^ 
AVhere  fractional  pieces  of  land  are  patented,  bounded  in 
part  by  a  stream  or  bayou,  the  original  plat  may  be  resorted 
to,  and  the  lines  as  originally  run  will  control.  Tliis  is  the 
rule  adopted  in  determining  controversies  between  contigu- 
ous proprietors  of  fractional  lands,  the  patentees,  and  those 
claimino-  under  them  being  restricted  to  the  boundaries  as 
shown  by  the  plats  and  field  notes.  In  all  cases,  Avhere  land 
is  made  fractional  by  a  navigal)lc  water-course,  the  patentee 
purchases  by  the  plat,  and  a  patent  for  a  fractional  part  of 
a  quarter  section  on  one  side  of  a  water-course,  where  the 
area  sold  is  noted  on  the 'plat  of  the  fractional  tract  called 
for  by  the  patent,  will  not  extend  his  entry  and  purchase 
across  the  stream,  so  as  to  embrace  that  part  of  the  quarter 
on  the  other  side.' 

§  6.  Plats  and  Subtlivisions.  Agricultural  lands  sel- 
dom receive  any  other  subdividing  than  that  afforded  by  the 
government  survey,  but  in  cities,  towns  and  villages,  the 
necessities  of  society  require  a  most  minute  subdivision  into 
what  are  popularly  termed  blocks  and  lots.  Original  subdi- 
visions again  become  the  subject  of  resubdi visions,  and 
these  in  turn  are  not  infrequently  divided  to  meet  the 
exierencies  of  social  or  business  relations.  The  formal  act  of 
resurveying  is  technically  termed  a  subdivision;  the  result 
of  the  survey  w^ien  projected  upon  paper,  a  plat.  These 
subdivisions  and  plats  play  an  important  part,  both  in  con- 
veyancing and  in  the  examination  of  titles,  and  upon  them 

'  Boorman  v.  Sunnucka,  42  Wis.  But  see  Wri^^ht  v.  Day,  33  Wis.  2G0, 
233;  Hoiick  v.  Yates,  82  111.  179.  and  authorities  la.st  cited. 

•'  Lammei-s  v.  Nissen,  4  Neb.  245.  *  McCoruiick  v.  Huse,  78  111.  363. 


SURVEYS,  PLATS    AND   SUBDIVISIONS.  175 

no  small  portion  of  the  validity  of  land  titles  rests.  In 
every  community  of  any  ap})reciable  size,  lands  are  conveyed 
and  described  with  special  reference  to  these  plats  and  sub- 
divisions, the  government  survey  being  referred  to  only 
incidentally  and  for  the  purpose  of  greater  certainty  in 
locating  the  particular  tract  which  forms  the  subject  of  the 
]ilat.  They  form  equally  as  important  features  in  pre- 
paring an  abstract  as  the  title  deeds  there  shown,  and  re- 
quire the  same  degree  of  care  from  the  examiner  in  their 
exposition.  /  Where  a  conveyance  gives  no  other  description 
of  the  land  than  the  lot  or  block  of  a  survey  or  subdivision, 
the  authentic  plat  of  such  survey  is  as  much  a  part  of  the 
deed  as  if  set  out  in  it,'  and  a  reference  to  a  plat  is  as  effect- 
ive by  way  of  estoppel  as  express  words  of  grant  or  cove- 
nant.' f  K  reference  to  a  plat  by  lot;  and  block  has  usually  a 
more  controlling  influence  than  a  special  description,  and 
wlien  a  designation  by  lot  is  followed  by  a  description  by 
metes  and  bounds  embracing  an  area  less  than  the  lot,  it  has 
been  held  to  import  an  intent  of  the  grantor  to  convey  the 
whole  lot,  tlie  law  presuming  the  addition  to  be  merely  an 
intent  to  give  a  more  particular  description.' 

§  7.  Formal  Requisites.  The  formalities  attending  the 
]>latting  and  suljdividing  of  land  are  the  subject  of  exi)ress 
statutory  provisions  in  all  the  States,  and  unlike  deeds,  there 
are  no  common  or  uniform  methods,  each  State  providing  its 
own  system  of  platting  and  authentication.  Ordinarily  the 
plat  must  show  the  shape  and  exterior  boundaries  of  the  land 
it  is  intended  to  represent,  and  of  each  subdivision  tliereof ; 
the  length  and  courees  of  all  boundary  lines ;  the  monuments 
erected  in  the  field;  and  the  name  of  tlie  tract  so  divided, 
as  well  as  the  streets,  etc.,  shown  thereon,  together  with  the 
width  of  such  streets,  alleys,  etc.  Apj)cndcd  to  the  jdat 
there  must  usually  bo  a  description  of  the  land  survcved, 
ofliciuliy   certilied    by    the   surveyor    and   a  certilicato   of 

'  IXjlde  V.  Vo(li<  ka.  40   5I<».  100;      Cox  v.  JanK-fl,  AV^  N.  Y.  r)r,7. 
Powers  V.  JnckHon.  r.O  Cal.  4'.M».  » liutlicifurd  v.  Tracy ,  lb Mu.  323. 

'  Baxter  u.  Arnold,  111  Mat*. 077; 


1  70  ABSTRACTS    OF   TITLE. 

acknowlccl^ini'iit  by  tlio  owner  or  owners  of  tlie  land.  Tn 
luldition,  numioipal  rennlations  sonictinies  reijuire  an  an- 
})roval  by  tlie  civic  anthorities.  The  forei^-oin*^,  or  similar 
requirements,  are  usually  made  indis;)ensHblo  requisites  to 
registration,  and  their  faithful  obsei-vance  is  necessary  to 
give  validity  to  the  subdivision.  l*Iats  are  usually  recorded 
in  the  registry  of  deeds  in  special  books,  though  this  is  n(»t 
a  unifoi'm  practice,  and  where  no  specilic  regulation  exists 
they  will  also  be  fonnd  in  other  places. 

Thus  arbitrary  divisions  made  by  the  assessor  for  the  ])ur- 
poses  of  taxation  Avill  frequently  be  found  in  the  olliceof  the 
auditor  or  clerk  of  the  county;  jilats  made  by  the  order  of 
a  court  of  chancery,  in  partition,  and  other  cases  will  be 
found  among  the  records  and  archives  of  the  court,  though 
these  observations  rather  apply  to  what  has  been  than  to 
present  practices,  and  all  plats,  particularly  in  the  newer 
States  are,  as  a  rule,  required  to  be  filed  with  the  recorder 
of  deeds.  The  following  will  serve  as  a  ]irecedent  for 
aljstracting  a  plat  and  subdivision,  the  minor  details  of 
which  must  be  varied  to  suit  the  demands  of  local  legisla- 
tion. 

Suhdivision  1       Plat,  entitled  \]iere  s^t  out  the  title 

hy  \  as  found  on  the  plat,  and  proceed 

William  Smith.       )  as  hereafter  shown.] 

Or,  if  desired,  commence  it  thus  : 


^^ Smith'' s  Svldivision 

of 
The  northeast  quarter 

of  the  northtcest  quar- 
ter of  Section  10, 
Town  IS  North, 
Eanqe  21,  east  of  the 
3d  P.  J/"." 


I^lat  entitled  as  in  the  margin. 
Recorded  June  2,  1S91. 
Book  2  of  Plats,  page  25. 
Surveyor''s     certtficate,    hy  Jason 
Lothrop,  dated  June  1, 1881,  certifies 
that  he   has   surveyed   the   northeast 
quarter,  etc.,   \set  out  description  hy 
stcrveyo?']   into    lots    and  hlochs,  as 
shown   upon   the  annexed  map,  and 
that  said  map  is  a  correct  representation  of  all  the  exterior 
houndaries  of  the  land  surveyed,  and  of  the  divisions  thereon 
made,  and  further  certifi£S  that  said  survey  and  map  was 


SURVEYS,  PLATS    AND    SUBDIVISIONS.  177 

mai^e  hy  the  order  and  direction  of  William  Smithy  and  that 
he  has  fully  complied  with  all  the  provisions  of  law  in  sn?'- 
veyimj,  svbdividiny  a7id  7}iaj}j)ing  same. 

[Should  notes  of  survey  he  fled  in  addition  to  the  map^ 
thty  may  l>e  shcicn  or  not  in  the  discretion  of  the  examiner,  or 
as  his  client  may  direct.] 

Achiowlcdged  by  VTilliam  Smith,  as  opener,  June  ^,  1SS7. 

Said  map  is  as  follows  {or,  by  direction,  ive  omit  the  map)). 

Usually,  if  the  map  is  small,  it  is  customary  to  insert  it. 
If  very  large,  then  only  such  portion  as  may  be  necessary 
to  show  the  relative  location,  shape,  boundaries  and  dis- 
tances of  the  particular  lot  or  lots  under  examination. 

In  this  event,  the  concluding  paragraph  should  read: 

So  much  of  said  map  as  relates  to  the  property  in  question 
is  as  follows: 

It  is  recommended  that  whenever  practicable,  the  plat  or 
some  portion  of  it  be  shown.  It  is  usually  of  considerable 
assistance  to  counsel,  and  if  the  examination  involves  niceties 
in  measurements,  or  conflicting  claims  of  contiguous  pro- 
prietors, is  indispensable.  If  the  law  requires  attesting  wit- 
nesses, note  any  defect  of  this  nature,  as  also  any  imperfect 
or  defective  execution.  Plats  and  subdivisions  made  by  ex- 
ecutors, administrators  and  guai-dians,  as  well  as  ])artitions 
between  heirs  and  tenants  in  common  are  frequently  made 
under  the  direction  and  sanction  of  a  court  of  e({uity,  and  in 
this  event  a  general  synopsis  of  the  proceedings  in  court,  as 
well  as  the  acts  of  the  owners  or  parties  interested,  should 
be  shown. 

§  8.  EllVct  of  l{('i::istrati(m.  AVlicn  duly  executed,  ac- 
knowl<'dge<l  and  recorded,  as  provided  by  law,  a  certiliod 
copy  of  such  j)lat  and  sulxli vision  may  be  used  in  evickMice 
to  the  siimo  extent  and  with  like  elfeet  as  in  cas<}  of  di-cds, 
and  by  st^itute  such  I'cgistraiion  and  acknowledgment  is 
usually  mad(,'  to  <»]i<'rate  as  a  ron\ey;inee  in  fee  siuqtl.-  (•!' 
sucIj  portions  of  tlie  premises  platted  as  are  ni:irlied  oi- noted 
12 


1.^  Ar.STKACTS    OF    TITLE. 

on  such  plat  as  donated  or  g-rantcd  to  tlie  public,  or  any 
society,  cori)oration  or  body  j)olitic,  and  as  a  genei'al  war- 
ranty ag'ainst  the  donor,  bis  heirs  and  representatives,  to 
such  donee  or  grantee  for  their  use,  or  for  the  use  and  pur- 
j)oses  therein  named  or  intended,  but  for  no  other  use.  And 
the  ]H'eniises  intended  for  any  street,  alley,  way  or  common, 
or  other  pul)lic  use,  are  held  in  the  corporate  name  of  the 
municipality  in  trust  to  and  for  the  uses  and  purposes  set 
forth  or  intended.'  Selling  by  a  plat  which  has  not  been 
recorded  is  also  a  misdemeanor  in  a  majority  of  the  States. 
§  9.  Vaciitioii  and  Cancellation.  The  entire  doctrine  of 
])lats  and  subdivisions  being  regulated  by  statute,  no 
uniform  rules  can  be  given  as  to  the  method  of  vacation 
or  cancellation,  and  recourse  must  be  had  to  local  law,  as  in 
the  case  of  platting  and  recording.  Ordinarily  a  plat  may 
be  vacated  by  the  oAvner  of  the  premises,  at  any  time  before 
he  has  disposed  of  any  of  the  property,  by  a  written  instru- 
ment declaring  such  intention,  executed,  acknowle<lged  or 
proved,  and  recorded  in  like  manner  as  deeds  of  land. 
Such  a  declaration,  duly  recorded,  usually  operates  to  destroy 
the  force  and  effect  of  the  recording  of  the  plat  so  vacated, 
and  divests  all  public  rights  in  the  streets,  allej^s,  public 
grounds,  etc.,  laid  out  or  described  in  such  plat.'  The 
record  of  the  plat  so  vacated  should  also  refer  to  the  vaca- 
tion. This  is  the  most  simple  manner.  In  some  States, 
however,  more  formality  is  required,  frequently  rendering 
necessary  the  intervention  of  a  court,  as  well  to  authorize 
the  initiation  of  proceedings  as  to  approve  of  such  as  may 
be  taken.*  Where  an  application  is  required  to  be  made  to 
a  court,  notice  is  also  required  to  all  whom  it  may  concern. 
In  the  former  case  of  vacation  a  synopsis  of  the  instrument 
filed  is  all  that  is  necessary  in  the  abstract;  in  the  latter,  a 
resume  of  the  steps  taken  as  well  as  the  judgment  or  order 
of  the  court  is  necessary.     The  effect  is  practically  the  same 

'See  R.  S.  111.   18^15,  p.  115;  do.  »  R.  S.  111.  1874,  Chap.  109,  §6. 

1874,  p.  771;  R.  S.  Wis.  1878,  p.  G45;  »  R.  S.    Vv^is.    1878,    Chap.    101, 

see  infra,  "Dedication    by  Plat,"  §2265. 
page  179. 


SURVEYS,  PLATS    AND    SUBDIVISIONS.  170 

in  either  case  both  as  to  the  owners  and  the  pulrlic.  "When 
made  by  a  declaratory  statement,  the  abstract  would  be 
substantially  as  follows : 


Vacation} 

of 
The  Pint  of  Bivcr- 
dafe,  being  F?'ed. 
Schmidfs  svldivis- 
ion  of  part  of  the 
south  2,300  chains  of 
the  sotitheast  qvarttv 
of  section  33,  toicn  37 
north,  range  IJf,,  east. 


Declaration  of  vacation. 
Dated  Jan.  31,  1SS3. 
Recorded  Jan.  31,  1SS3. 
Booh  852,  page  210. 
Becites,   that    Frederick  Schmidt, 
'  who  is  the  sole  owner  of  all  the  lands 
and  lots  covered  hij  hlocls  5,  G,  7,  8,  9, 
10  (etc.),  of  Frederick  Schmidt's   siih- 
division  of  part   of  the   south   2,300 
chains  of  the  soxdheast  quarter  of  sec- 
tion 33,  toion  37  north,  range  llf.  east 
in  the  County  of  Cook,  and  State  of  Ulinois,  recorded  June  21, 
187 If,,   in  book  7  of  plats,  page  83,  under  the  provisions  of 
the  statute,  sets  aside  the  subdivisions  referred  to  and  vacates 
the  same  for  the  purpose  of  restoring  the  property  to  its  orig- 
irml  condition,   meaning  and  intending  to  declare  vacated, 
and  does  declare  vacated  the  whole  of  said  plat. 
Acknowledged  Jan.  31,  1883. 

"Whenever  practical)le,  the  vacation  sliould  immediately 
follow  the  plat.  This  can  always  be  done  where  no  convey- 
ances have  been  made.  "Where  portions  of  the  property 
have  been  sold  and  the  owners  join  in  the  execution  of  the 
vacation,  the  deeds  to  them  will  intervene  in  chronoloj^ncal 
order. 

§  10.  Dedication  by  Plat.  "Where  a  dedication  to  pub- 
lic use  is  sought  to  Ite  estalilislied  from  the  ac()iiioscence 
of  the  owner  in  the  use  of  the  property  by  tbe  pul)lic,  or 
from  acts  or  dor-larations  of  an  c(|uivocal  character,  which 
are  consistent  with  a  dedication  to  tlie  j^ublic  use,  or  to  tlie 
mere  pennissivo  use  by  the  i)ul>lic  for  a  temporary  thouijli 
indefmito  period  of  time,  the  intention  (if  the  owner  in  per- 

'  InBt**a'l  of  this  caption  tlio  ex-      the  titlo  n«  in  rafio  of  deoils  in    tlir 
amin»T    may    nay    "Vacation    hy      riglit-liand  margin. 
Krwlerick    Sclimj<lt,"  and    Bc-t  out 


ISO  ABSTRACTS    OF   TITLE. 

mitting  such  use  is  unquestionably  of  controlling  influence 
and  inn)()itance  in  dctennining-  whether  property  has  been 
dedicated  by  the  owner  to  public  use  or  not.'  But  where 
tiie  dedication  is  clearly  manifested  l)y  uiuMjuivocal  acts  or 
declarations,  upon  which  the  })ublic  or  those  interested  in 
such  dedications  have  acted,  the  fact  that  the  owaier  may 
have  entertained  a  different  intention  from  that  manifested 
by  his  acts  or  declarations  is  of  no  consequence,'  and  if  the 
owner  of  hind  subdivides  and  plats  same,  or  lays  out  and 
establishes  a  town  or  any  addition  thereto,  and  makes  and 
exhibits  a  map  or  plan  of  such  town  or  addition,  with  streets, 
alleys,  public  squares,  etc.,  and  sells  the  lots  with  reference 
to  such  map  or  plan,  the  purchasers  acquire,  as  appurtenant 
to  their  lots,  all  such  rights,  privileges,  easements  and  servi- 
tudes represented  by  such  map  or  plan  to  belong  to  them, 
or  to  their  owners,  and  the  sale  and  conveyance  of  lots 
according  to  such  map  implies  a  grant  or  covenant,  for  the 
benefit  of  the  owners  of  the  lots,  that  the  streets  and  other 
})iiblic  places  rei)resented  by  the  map  shall  never  be  appro- 
])riated  by  the  owner  to  a  use  inconsistent  with  that  rei)re- 
sented  by  the  map  on  the  faith  of  which  the  lots  are  sold.' 
If  the  owner  of  land  indicates  by  the  map,  or  other  unequiv- 
ocal acts  or  declarations,  that  a  particular  lot  or  square  is  to 
be  reserved  or  applied  to  a  particular  or  specific  use,  of  a 
quasi  public  character,  and  such  as  to  induce  purchasers  of 
contiguous  or  neighboring  lots  to  give  a  higher  price  than 
they  otherwise  would,  the  use  to  which  such  lot  was  to  be  a})- 
l»ropriated  would  no  doubt  be  a  reservation,  and  not,  strictly 
speaking,  a  dedication  to  public  use.  But,  nevertheless, 
the  difference,  so  far  as  the  owners  of  lots  purchased  on  the 
faith  of  such  reservation  are  concerned,  is  merely  nominal, 

'Dillon  Mun.  Corp,  §  -198;  Irwin  '  Lamar  Connty  v.  Clements,  49 

V.  Dixon,  9  How.  30;  Manderschid      Tex.  347;  Hubert.  Gazley,  18  Oliio, 
r.  DubiKjue,  29  Iowa,  73;  Godfrey      18;  Lof^ansport  v.  Dunn,  8  Ind.  378; 
V.  City  of  Alton,  12  111.  29;  Rees  v.      Beaty  v.  Kurtz,  2  Pet.  5C6. 
Chic-ago,  38  111.  323. 

'  Lamar  County  v.  Clements,  49 
Tex.  1^17. 


SUKTEYS,  PLATS   AXD    SUCDIYISIONS,  ISl 

for  the  owner  of  the  ]n-oiierty  who  thus  sells  it  is  estopped 
from  appropriating  the  land  so  reserved  to  a  purpose  incon- 
sistent with  that  for  which  it  was  reserved,  or  he  will  be 
held  by  such  sale  to  have  created  a  servitude  in  the  prop- 
erty reserved  in  favor  of  the  dominant  estate,  which  he  has 
conveyed,  which  Avill  prevent  his  a])iilying-  the  reserved  prop- 
erty to  any  other  ])urpose  than  that  for  which  it  was  re- 
served.' Ordinarily  the  fee  does  not  follow  a  dedication  but 
remains  in  the  original  proprietor  burdened  with  the  public 
use;  but  in  a  statutor}^  dedication,  by  making  and  recording 
a  plat  the  fee  passes  as  an  incident  and  is  held  by  the  mu- 
ni i  )ality  for  the  use  aud  benefit  of  the  public."  An  im- 
portant distinction  will  therefore  be  made  between  a  common 
law  and  a  statutory  dedication.  As  a  necessary  sequence, 
where  the  title  of  one  wlio  makes  a  dedication  fails,  the 
dedication  also  fails;  but  if  the  owner  of  the  title  recognizes 
the  dedication,  as  where  there  has  been  a  plat  made  by  the 
one  whose  title  has  failed  and  the  true  owner  deeds  lands 
according  to  the  plat,  he  will  be  estopped  from  denying  the 
dedication.' 

'  Harrison  i».  Bering.  44  Tex.  255;  ^GriiUey  r.  Iloijkins,  84  III  G38. 

Coin.  V.  Rush,  14  Penn.  St.  186. 

="  Manly  v.  Gibscm,  13  III.  308;  R. 
R.  Co.  V.  Joliet,  79  lU.  25. 


CHAPTER  XIII. 

FORMAL  PARTS  OF  DEEDS, 


1  1. 

Operative  parts  of  a  deetl. 

§  15. 

Special  recitals. 

2. 

Names  of  the  paities. 

16. 

The  habendum. 

3. 

Grantors. 

17. 

Exceptions  and 

r  e  s  e  r  V  a- 

4. 

Grantees. 

tions. 

5. 

Nature  of  the  instrument. 

18. 

Conditions  and 

limitations. 

6. 

Date  of  instrument. 

19. 

Covenants. 

7. 

Registi-ation. 

20. 

Execution. 

8. 

Consideration. 

21. 

The  signature. 

9. 

Effect  of  consideration. 

22. 

The  seal. 

10. 

Words  of  gi-ant. 

23. 

Attestation. 

11. 

Words  of  inheritance  and 
limitation. 

24. 

Autlientication  - 
edgment. 

—  Acknowl- 

J?. 

Description  of  property. 

25. 

Delivery. 

13. 

Description — Sufficiency. 

26. 

Ancient  deeds. 

14. 

Description — Construction. 

27. 

Stamps. 

§  1.  Oper.ative  Parts  of  a  Deed.  The  essential  features 
of  a  deed  of  conveyance,  which  require  notice  on  the  part 
of  the  examiner,  are  as  follows  : 

The  names  of  the  parties,  grantor  and  grantee  respect- 
ively, "vvith  full  descriptio  personoe,  including  the  character 
in  which  they  act. 

The  nature  of  the  instrument. 

The  dates  respectively,  of  execution  and  registration,  to- 
gether with  the  volume  and  page  of  the  registry. 

The  consideration. 

Operative  words  of  grant,  inheritance  and  limitation. 

The  description  of  the  property  or  matter  conveyed. 

The  habendum. 

Reservations  and  exceptions. 

Covenants  and  conditions. 

Special  recitals. 

(182) 


FOKMAL   PAETS    OF    DEEDS.  183 

Execution  and  attestation. 

The  acknowledgment  and  certificate  of  conformity. 

The  majority  of  the  foregoing  parts  must  appear  in  every 
abstract,  while  a  few  need  only  be  shown  when  they  become 
matei'ial;  the  question  of  materiality  to  be  decided  by  the 
examiner  from  the  circumstances  developed  in  each  })artic- 
ular  case.  A  brief  review  of  the  foretroinji:  heads  will  be 
made  in  the  succeeding  paragraphs  and  the  subjects  will 
also  receive  further  consideration  in  treating  of  specific  con- 
veyances. 

§  2.  Names  of  the  Parties.  As  there  can  be  no  valid 
deed  without  grantors  to  give  '  and  grantees  capable  of  tak- 
ing,* the  parties  to  the  conveyance  form  the  first  natui-al 
inquiry.  In  the  abstract  they  should  be  shown  with  the 
same  certainty  of  identity  as  in  the  original  instruments, 
together  with  any  imperfect  designation,  error  or  omission, 
appearing  on  the  face  of  the  deed  or  deduced  inferentially 
from  comparison  with  other  instruments  in  the  chain. 
Errore  or  omissions,  however  slight  or  trivial,  should  always 
be  noted  in  such  a  manner  as  to  bring  them  to  the  attention 
of  the  person  who  may  peruse  the  abstract,  and  when  nec- 
essiiry  may  be  supplemented  by  the  examiner's  private  note, 
or  references  to  other  instruments  shown  in  the  same  exam- 
ination. The  names  of  the  parties  should  form  the  caption 
to  the  synopsis,  and  are  usually  written  in  the  style  of  a 
legal  caption  or  entitlement  in  court  pleadings,  on  the  left 
hand  margin  of  the  sheet  and  united  by  a  bracket. 

§  3.  Grantors.  The  names  of  the  grantors  apjioar  several 
times  in  the  deed,  and  are  usually  inserted  among  the 
first  recitals  in  the  premises.  acc«)mj)anied  witli  a  description 
of  the  person  and  other  particulars  as  to  residence,  marriage, 
caj)acity,  etc.  They  again  aj)i)oarin  the  covenant  clause  and 
finally  in  the  execution.  In  abstracting  the  deed  the  names, 
wherever  written, sliould  be  carefully  compared  with  each 
other  and  variaiici.-s  in  the  granting  or  covenanting  clauses 

'  \Vliii:ik«Tt;.  Mill.-r.  S:{  III.   asi.       M-.n.  rKy.)  .".ir,;   Duuthitt   v.   Stiii- 
'(Jariurtt    V.   Ciurialt,     7  T.    JJ.       buii,  03 -Mo.  208. 


1j>-1  abstracts  of  title. 

luul  ill  tlio  execution  and  acknowledgment  proix'rly  noted. 
Tlie  domestic  relations  of  either  or  any  of  the  grantors, 
if  stated,  should  be  given  with  the  same  particuhirity  as  the 
original.  At  common  law  the  deed  of  ii  married  woman 
is  absolutely  void,'  but  Ijy  liln'ral  and  pi-ogressive legislative 
enactments,  this  rigorous  and  seemingly  unjust  rule  has  been 
practically  abrogated.  The  examiner  will  therefore  note  the 
changes  of  the  law  in  this  respect,  as  ajiplied  in  his  own 
State,  and  carefully  observe  that  all  the  requirements  of  the 
statute,  at  the  date  of  the  deed,  have  been  substantially 
com})lied  with,  as  a  married  woman  can  only  be  divested  of 
her  i)roperty  or  interest  in  land  in  the  mode  which  the  Leg- 
islature has  prescribed.*  Though  it  is  the  universal  practice 
of  conveyancers  to  insert  after  the  names,  the  residence  and 
not  infrequently  the  occupation  of  the  parties,  there  apjiears 
no  good  reason  why  same  should  be  transferred  to  the 
abstract.  The  question  of  alienage  is  set  at  rest  in  all  the 
States  by  special  legislation,  wdiile  the  chain  of  conveyances 
is  usually  sufficient  to  prove  identity  without  referring  to 
residence  or  occupation.  Some  examiners  give  the  residence 
of  parties  onl}-  when  they  reside  without  the  State,  as  an  aid 
in  determining  their  identity  in  the  search  for  judgments,  or 
to  enable  counsel  to  further  prosecute  inquiries  raised  by  the 
abstract  and  not  answered  therein.  The  matter  is  optional 
with  the  examiner  and  may  be  omitted  or  not  in  his  discre- 
tion. Special  descriptions,  particularly  when  explanatory 
of  the  capacity  in  which  the  parties  act,  should  usually  be 
given  verbatim,  and  always,  when  they  indicate  a  repre- 
sentative or  official  character. 

§  4.  Grantees.  Most  of  the  foregoing  remarks  on  grant- 
ors apply  with  equal  force  to  grantees,  and  the  same  par- 
ticularity should  be  used  in  reciting  and  describing  them. 
The  names  of  the  grantees  are  found  in  the  operative  part 
of  the  premises,  and  occasionally  are  repeated  in  the  haben- 

'  Fowler  v.  Shearer,  7  Mass.  14;  Garret  v.  ]\Ioss,  22  lU.  363;  Heaton 
Lane  v.  Soulard,  15  111.  124.  v.  Fryberger,  38  Iowa,  185. 

« Mason   v.  Brock,    12    lU.    273; 


FORMAL    TARTS   OF    DEEDS.  1S5 

dnm,  though  the  references  "which  follow  are  usually  to 
"said  second  parties."  Imperfect  designation,  errors  and 
omissions  shoukl  be  treated,  so  fur  as  nuiy  be,  in  the  same 
general  manner  as  in  case  of  grantors,  though  these  circunv 
stances  are  not  so  ajiparent  when  applied  to  grantees,  and 
usually  must  be  deduced  inferentially  or  by  comparison.  It 
is  essential  to  the  validity  of  a  conveyance  that  it  be  to  a 
grantee  capable  of  taking  and  of  proper  identification;  hence, 
a  deed  to  a  corporation  which  has  no  legal  existence,  would 
be  a  nullity,  and  pass  no  title  to  any  one; '  or  to  the  heirs  of 
a  living  person  named  therein  without  giving  the  names  of 
the  heirs.'  So,  too,  a  conveyance  to  Jno.  Smith  tfe  Co.  would, 
at  law,'  have  the  effect  to  vest  the  title  in  Jno.  Smith  alone,* 
a  firm  name  not  being  a  sufTicient  naming  of  the  grantee;  yet 
it  seems  that  this  may  be  regardeil  as  a  latent  ambiguity 
which  may  be  explained  by  parol,'  while  inequity, he  would 
be  treated  as  holding  the  legal  title  in  trust  for  the  partner- 
shi]). 

An  absolute  conveyance  from  husband  to  Avife,  Avliile  void, 
at  law,  has  been  held  good  in  ecpiity,  and  will  vest  the  title 
in  the  wife  as  against  the  heirs  of  the  husl)and.* 

A  deed  to  a  ]>arty  by  a  wrong  baptismal  or  Christian 

'  Doutliitt  V.  Stinson,  G3  Mo.  2G8;  Grimes  v.  Orraiid,  3  IIeLsk.(  Ti-iin.) 

Hurnhock  v.  ■\Vt'stl>rook,9  Juhns,  238. 

(N.  Y.)7;i;  Init  Hlthouj?h  nop;r;intce  "The  several  meinboi-s  of  a  firm 

be  named,  if  the  grant  ha  nuvle  for  can  not  bo  ro^^arded,  in  tlie  viiw  of 

a  specific  use,  a  trust  will  often  be  a  court  of  law,  as  holding  real  istata 

created  which  a  court  of  e<juity  will  as  tenants  in  common,  unless  it  be 

protect,  and,  if  necessary,  api)oint  conveyed  to   them,    as    such,    by 

a  trastee  and  compel  a  conveyance  name. 

to  him  of  tlie  l.'gal  title.     Bailey  v.  ''.Arthur  v.  Webster,  22  Mo.  378: 

Ki'.hurn,  10  M.  t.  (Ma.ss.)  17G.  Winter  r.  Sto<-k,  2<J  Cal.  407;  (}os- 

•Ilall  V.  I>-unard,  1  I'ick.  (Mass.)  Bett  v.  Kent.  19.  Ark.  (i()7;  Rarnett 

27;  Wiiislow  r.  Winsiow,  .')2  Ind.  8.  v.  r.acliman.  12  Nev.  'Ml. 

In  asimilarcwe  inTenni's.see,  liciw-  'Miirry   v.  Hlackii'dge,  71  N.   C. 

ever,  it  was  held   that  tlie  word  492. 

"  heirs"  should  not  be  taken  in  Oh  *  rutiiam  v.  WnUw  II.  is  Wis.  ',V.\:\; 

t4'(dinical  signification,  but  to  mean  Dale  r.  Lincoln,  (V2  III.  22;  Sherman 

"  children,"  and  that  the  (UmI  tmik  r.  llo-land,  54  Ind.  078. 
elTt-ct    UM    u    pnaM-nt    grant.      Seo 


ISG  AIJSTUACTS    OF    TITLE. 

name  Avill  yet  vest  title  in  the  intended  grantee,'  extrinsic 
evidence  being  admissible  to  explain  mistakes  or  prove 
identity,'  and  if  u])(m  a  view  of  the  whole  instrument  the 
grantee  is  pointed  out,  the  grant  will  not  fail,  even  though 
the  name  of  baptism  be  not  given  at  all/ 

AVhen  two  persons  bear  the  same  name  any  designatory 
quality  mentioned  in  the  deed  should  be  shown,  as  "Jr.,"  * 
"2(1,"  etc.,  and  for  the  purpose  of  more  certain  identification 
it  is  often  well  to  add  the  residence  of  the  parties  if  given. 
If  father  and  son  bear  the  same  name,  unless  explained,  the 
irrant  will  be  taken  as  one  to  the  father.' 

No  person  can  take  a  present  estate  under  a  deed  unless 
named  in  same  as  a  party,  and  the  habendum  can  never 
introduce  one  who  is  a  stranger  to  the  premises  to  take  as 
grantee*  (though  he  may  take  by  way  of  remainder),  but 
where  the  grantee's  name  has  been  omitted  in  the  premises,  if 
the  habendum  be  to  him  by  name,  his  heirs,  etc.,  he  takes  as  a 
party,  and  the  defect  is  cured.'  Far  less  strictness  is  required 
as  to  capacity,  etc.,  in  grantees  than  in  case  of  grantors,  and 
few  of  the  disabilities  which  encompass  the  latter  are  appli- 
cable to  the  former.  Coverture,  infancy,  lunacy,  etc.,  form 
no  bar  to  the  grant,  but  as  a  rule,  to  be  valid,  it  must  be  to  a 
corporation,  or  to  some  certain  person  named,  who  can 
take  by  force  of  the  grant,  and  hold  in  his  own  right, 
or  as  trustee." 

§  5.     Nature  of  the  Instrument.     After  the  recital  of 

'  Staak  V.  Sigclkow,  12  Wis.  23-1;  son  both  have  the  same  Christian 

but  see    Crawford   v.   Si:)encer,   8  name    as   well    as    family    name. 

Cush.  fMas3.)418.  Padgett  v.    Lawrence,    10    Paige, 

'Peabody    v.    Brown,    10    Gray  (N.  Y.)  170. 

(Mass.),  45.  '  Stevens  v.  West.  6  Jones  (N.  C), 

^Newton  v.  Mckay,  29  Mich.  1;  49;  Padgett  v.  Lawrence,  10  Paige 

and  see    Scanlan  v.  Wright,    13  (N.  Y.),  170. 

Pick.  (Ma.ss.)o23.  « Blair  v.  Osborne,  84  N.  C.  417; 

■•Tho  word  "  Jr."  forms  no  part  Hornbeck  u.  Westbrook,   9  Jolms, 

of  the  name  of  the  person  to  whose  73. 

name  it  is  usually  affi.xed,  but  is  ''Lawe  u.  Hyde,  89  Wis.  346. 

merely  descriptive  of  the  person  *  Jackson  v.  Cary,  8  Johns.  385: 

intended,  and  is  usually  adopted  to  Newton  v.  McKay,  29  Mich.  1. 
designate  the  son  where  father  and 


TOUyLAL   PARTS    OF    DEEDS.  1S7 

the  parties,  the  next  inquiiy  of  importance  is  the  nature  or 
character  of  the  conveyance,  which  can  be  ascertained  only 
from  a  general  survey  of  the  entire  instrument.  The  name 
should  be  Avritten  on  the  right  hand  margin  of  the  sheet  in 
the  manner  hereafter  shown,  and  should  be  sufRciently  full 
to  indicate  its  true  purport.  The  name  of  the  particular 
kind  of  conveyance  has,  of  course,  no  legal  elFicacy  or  value, 
but  serves  as  a  fitting  introduction  to  the  syno})sis,  and  sx\>- 
prises  the  reader  at  the  outset  of  its  import  and  character. 
§  6.  Date  of  Instrument.  The  date  of  the  execution 
of  the  deed  should  follow  next  in  order,  and  may  consist 
simply  of  a  line  embodying  the  fact,  as  "  Dated  July  10, 
1SS2,"  or  if  without  date,  a  statement  to  that  effect.  The 
date  is  no  part  of  the  substance  of  a  deed,'  nor  is  it  essential 
to  its  validity,"  the  conveyance  taking  effect  only  from 
delivery,'  but  may  become  imjiortant  in  determining  ques- 
tions of  priority,*  or  in  ascertaining  whether  all  the  statu- 
tory requirements  at  the  time  of  its  execution  have  been 
coni}>lied  with.  The  date  of  a  deed,  in  the  absence  of  other 
proof,  is  presumed  to  be  the  true  date  of  its  execution,'  as  well 
as  delivery,"  and  is  the  time  from  which  title  in  the  grantee 
should  ordinarily  be  computed.'  As  deeds  are  now  drawn, 
the  date  usually  forms  the  initial  recital  in  the  premises, 
though  it  may  frequently  be  found  in  the  testimonium 
clause,  and  in  case  of  discrepancy  the  latter  should,  it  seems, 
be  taken  as  the  true  date.*  Though  the  expressed  date  of 
a  deed  is  immaterial  to  its  operation  and  effect,*  and  may 
under  ordinary  circumstances  be  contradicted  or  explained,'* 

'Jackson    v.     Schoonniakfr,     2  »  Darst  v.  Bates,  51  111.  431);  Smith 

John-s,  2:J0;  Meach   v.    Fowler,    1  i  V.  Porter,  10  Gray,  0(i. 

Ark.  29;  Costigan  v.  Gould,  5  Dc-nio,  •  Hardin  v.  Crate,  78  III.  553. 

29).  '•  Breckenridge  V.    Tudd.Ol  Am. 

•Jackson  V,  Bard,  4  Johns.  230;  Dec.  83. 

Blake  r.  Fish,  44   111.  3<i2;  Tliomi>.  »  M.irrison  r.  raidwcll.  r,  T.   II. 

son  »•.  Thomi>s<»n,  9  Iiid.  o23.  Moii.  (Ky.)4:U>. 

•Tiiatehcr     u.      St.       Andrew's  •  Harrinoii  r.  TniK(4'e.M  of  rhilliiis' 

Church,  37  .Mi<h.  2CJ;  Whitaker  V.  A'-ademy,  1-'  Mass.  l.Ml. 

Mill.r,  K3  III.  :{M1.  10  2  Black.  Com.  IKU. 

*h«e  title-  "  D.Iiv.rv." 


ISS  ABSTRACTS   OF    TITLE. 

yet  wlion  taken  in  connection  with  conditions  or  sti})iilations 
unnexed  to  the  grant,  it  may  becoiue  important  in  lixing 
the  time  for  the  performance  of  any  act  by  grantor  or 
grantee,  and  in  such  case  can  not  be  varied  by  parol.' 
ShouUl  the  instrument  be  without  date,  the  date  of  acknowl- 
edgment may  bo  presumed  to  bo  also  that  of  execution  and 
delivery.* 

§  7.  Registrtition.  For  convenience,  tlie  particulars  of 
registration  should  follow  the  date,  though  many  examiners 
prefer  to  insert  them  at  the  conclusion  of  the  synopsis  as  a 
proper  logical  sequence.  In  the  examination  of  titles,  how- 
ever, these  facts  are  best  read  together,  and,  to  facilitate  the 
hil)oi's  of  counsel,  should  be  placed  as  first  indicated.  The 
only  nuiterial  facts  cojicerning  registration  are,  the  date  of 
record  and  the  volume  and  page  on  which  the  instrument  is 
recorded,  wdiich  should  be  stated  briefly  and  concisely.  In 
case  of  re-record,  the  date,  volume  and  page  of  the  former 
record  may  be  given  after  the  synopsis  as  a  sup])lemental 
foot-note.  As  the  general  subject  of  registration  has  already 
been  quite  fully  noticed,  but  little  need  be  said  at  this  place. 
The  date  of  record  is  important  in  passing  on  questions  of 
priority,  particularly  when  the  instrument  is  itself  without 
date,  and  in  those  States  where,  by  statute,  it  must  be 
recorded  within  a  specified  time  to  secure  preference  over 
other  conveyances  or  against  creditors.  "Whenever  practi- 
cable, it  is  recommended  that  all  information  be  taken  direct 
from  the  records,  but  occasionally  it  will  happen  that 
through  the  tardiness  of  the  enrolling  otlieers,  conveyances 
are  not  actually  transcribed  until  long  after  they  have  been 
filed  for  record.  In  this  event  the  examiner  in  order  to 
fully  cover  the  period  of  his  search,  must  have  recourse  to 
the  original  documents,  but  it  is  further  recommended  that 
after  the  synopsis  of  all  such  documents,  the  examiner 
a])pend  the  following : 

Note. — The  particulars  of  the  foregoing  convey  anee  taken 
from  tJte  original  instrument. 

'  Jjsoph  V.  Biglo  .V,  4  Gushing,  82.  '  Gorman  v.  Stanton,  5  Mo.  App. 

585. 


FORMAL    PARTS   OF    DKEDS,  189 

§  8.  Consideration.  The  consideration  naraocl  in  the 
convevance  next  follows,  and  when  consisting  of  the  ordi- 
nary acknowledgment  of  the  receipt  of  money,  may  be  ex- 
pressed in  a  simple  statement  of  the  amount  mentioned;  as, 
'*  Consideration  81,000.00.''  The  consideration  recital,  under 
the  current  of  modern  decisions,  has  lost  its  foi'mer  impor. 
tance  and  not  infrequently  fails  to  denote  the  true  motive  of 
the  conveyance.  "When  only  a  nominal  sum  is  inserted, 
coupled  with  other  considerations  not  of  a  pecuniary  nature, 
as  ''love  and  affection,"  marriage,  performance  of  specific 
acts,  etc.,  the  recital  should  be  given  in  full,  in  the  identical 
language  of  the  instrument,  and  verified  by  quotation 
marks.  When  the  consideration  amounts  to  a  condition 
precedent  or  subsequent,  this  may  become  of  primary  im- 
portance, v»-hile  it  should  always  be  stated  "with  suificient 
clearness  to  enable  counsel  to  determine  whether  same  is 
sufficient  to  sustain  the  conveyance.  Should  the  instrument 
be  without  consideration,  this  fact  should  also  be  noted  in 
the  line,  "  No  consideration  expressed.*' 

§  9.  EHVct  of  Coiisi<lei'ation.  Xo  consideration  was 
required  in  conveyances  under  the  common  law,  the  hom- 
age and  fealty  incident  to  the  same  being  deemed  sullicient, 
but  became  necessary  under  the  statute  of  uses.'  As  a  gen- 
eral proposition,  any  valual)le  consideration,  acknowledged 
or  proved,  is  suificient  to  sustain  a  conveyance  of  lands,"  and 
the  acknowledgment  in  the  deed  of  payment  of  same,  is  so 
far  conclusive  of  the  fact  as  to  give  effect  to  the  convey- 
ance.' A  djcjd  executed  by  the  pirty  in  wliom  title  is 
vested,  ami  expressing  a  valuable  consideration,  never  needs, 
as  against  him  or  those  claiming  under  him,  or  as  ngninst  a 
stranger,  to  be  siqiported  by  sliowing  what  other  ivason,  in 

'At  tlio  prcsfnt  time  the  on 'y  ofTi-'tof  tlifdccd  fortlKMist'stlifn'- 
prju  tic.il  oiMTiition  of  the  L-xprcs-  in  di'dan-d.  ^Iceki-r  v.  Mcckfr,  10 
Biun  of  accjiiMidi-rution.or  the  intro-  Conn.  -MV,  GrMnlspiHil  r.  Fuller, 
(liii-lion  of  :i  clause  reciting  a  con-  W  Me.  Ml;  (Jraves  v.  ttravi-s,  21)  N. 
Hi'lyralion,    is   to   pn-vcut  a  n-.sult-  II.  I'i!). 

in;;  truht  to   the  K'a"*"'"  '""'  ••«t<ip  'JackHon  v.  I.ecl(,  19  Wend.  ".itO. 

him  from  denying  the  making  and  'Ociiiltree  v.  MeClung,  7  W.  Va. 

2:!2. 


190  ABSTRACTS    OF    TITLE. 

addition  to  tlio  will  of  the  party,  led  to  its  execution.' 
Nor  is  it  essential  to  the  validity  of  a  ciniveyanee  that  the 
cc^nsideration  shoukl  be  expressed,''  and  a  deed,  if  pro})erly 
drawn,  will  pass  tlie  title,  whatever  it  may  be,  without 
reference  to  the  consideration  paid.'  Ordinarily,  where 
parties  contract  by  deed,  a  consideration  will  be  im])lied 
from  the  seal,*  which  as  a  rule  imports  consideration,"  and 
it  has  been  held  that  an  instrument  in  form  a  conveyance 
and  duly  signed,  whether  under  seal  or  not,  imports  a  con- 
sideration," while  a  voluntary  conveyance,  without  any 
consideration,  either  good  or  valuable,  is  valid  and  binding 
between  the  parties  and  their  privies.'  As  against  the 
grantor,  and  those  in  privity  with  him,  the  acknowledgment 
in  the  deed  of  payment  is  his  receipt  or  admission,  which 
on  proof  of  the  deed  will  be  considered  as  proved.'  Such 
acknowledgment,  however,  is  not  conclusive,  being  merely 
by  way  of  recital,  and  though  it  affords  prima  facie  evi- 
dence of  the  fact,  yet,  for  the  purpose  of  recovering  the 
consideration,  the  grantor  may  still  show  that  it  was  never, 
in  fact,  paid,'"  but  not  to  invalidate  or  defeat  the  opera- 
tion of  the  deed."  As  against  the  creditors  of  the  grantor 
such  recital  is  but  hearsay,  and  no  evidence  of  the  fact  of 

'  Rockwell  V.   Bro^vn,  54  N.  Y.  jn  the  absence  of  statutory  require- 

210;  Men-ill  v.  Burbank,  23  Me.  538.  mcnts  to  the  contrary. 

2  Jackson     v.     Dillon,   2    Overt  i  Fouby  v.   Fouby,   34  Ind.  438; 

(Tenn.),  261;  Wood  v.  Beach,  7  Vt.  Wallace  v.   Hanis,   32  Mich.  380; 

522;      Boynton  v.    Rees,   8    Pick.  Laberee  r.  Carleton,  53  Me.  211. 

(:Mass.)329.  sBayliss  v.   Williams,   6  Coldw. 

^Tetrow  v.  Merriweather,  53  III.  (Tenn.)  440. 

278;  Laberee  v.  Carleton,   53  Me.  9  Huebsch  v.  Scheel,  81  111.  281; 

211.  Parker  v.  Foy,  48  Miss.  260;  Webb 

•*  Ross  V.  Sadgbeer,  21  AVend.  166;  v.  Peele,  7  Pick.  (Mass.)  247. 

Evans    v.    Edwai-ds,   26  111.    279;  "Bai'ter  i'.  Greenleaf,  65Me.  405; 

Croker  v.  Gilbert,   9  Cush.  (Mass.)  Paige  i\  Sherman,  6  Gray  (Ma.ss.), 

131.  511;  Grout  v.  Townsend,  2  Hill  (N. 

»Hvmt  V.  Johnson,  19  N.  Y.  270;  Y.),  554. 

Croft  V.  Bunster,  9  Wis.  503;  Bush  "  Bassett  v.  Bassett,  55  Me.  127; 

V.   Stevens,  24  Wend.  (N.  Y.)  256.  Newell    v.    Newell,   14  Can.   206; 

«Ruth  V.  King,  9  Kan.  17.    This  Richardson  v.  Clow,  8  lU.  App.  91. 


FORMAL    PAKTS    OF    DEEDS. 


191 


pa^nnent,'  but  no  one  except  a  creditor  can  avail  himself  of 
the  objection  that  the  deed  was  given  without  considei-a- 
tion.* 

§  10.  "Words  of  Grant.  The  operative  words  of  grant 
are  found  in  the  premises  and  usually  immediately  follow  the 
consideration  recitals,  in  which  order  they  should  also  ai)pear 
in  the  abstract  whenever  it  may  be  desirable  to  set  them 
forth  fully.  It  is  a  familiar  rule  with  conveyancers,  that  to 
vest  a  title  to  land,  the  deed  must  contain  apt  words  of 
grant,  release  or  conveyance,'  and  so  faithfully  has  this  been 
followed,  it  is  not  uncommon  to  meet  conveyances  with  as 
many  as  seven  or  even  ten  operative  words  of  grant.  The 
effect  of  these  words  is  a  question  of  construction  to  be 
governed  and  decided  by  the  law  of  the  State  in  which  the 
land  is  situate,*  and  no  general  rule  can  be  formulated  for 
the  guidance  of  the  practitioner  the  laws  of  the  dilferent 
States  being  widely  divergent.  The  words  of  grant  of 
most  frequent  occurrence  are  "grant,*  bargain  and  sell," 
and  in  many  of  the  States  when  not  limited  l)y  express 
words  they  are  construed  as  express  covenants,"  wliile  in 
other  States  such  a  conveyance,  without  more,  would  l»e  a 
mere  quit-claim  and  inoperative  to  convey  an  after-ac<iuired 
title,'  or  warrant  that  conve3'ed.*  Where  the  deed  is  with- 
out covenants,  or  contains  only  special  or  limited  covenants, 
the  words  of  grant  should  be  set  forth  immediately  })reced- 


'R.-'in.'ld  Mfg.  Co.  V.  Dysart, 
62  Pa.  St.  02:  Rose  v.  TnunUtn,  119 
Mafis.  00:  Houston  v.  Bluckiiiaii, 
60  Ala.  Wg. 

»  Hat^h  V.  Bath's,  54  Me.  IW. 

*  Jolmson  V.  Baiitock,  '.iH  111.  Ill; 
Catlin  V.  Ware,  9  Mass.  218;  llain- 
mt'Im.an  v.  Mounto,  87  Ind.  178; 
Brown  v.  ManUr.  21  N.  H.  ry^H. 

*  McGwn  V.  Scales,  9  Wall.  23; 
Clark  r.  Graham.  0  Wheat.  577, 

'  Tiie  word  "((juvey"  i.s  (smiv- 
alent  t')  "Krant."  Lauibcrt  v. 
Smith,  9  Or.  Ib5. 


«  Brodie  v.  Watkins,  31  Ark.  319; 
Hawk  V.  McCullou^di,  21  111.  220. 
TliLs  construction  is  usually  nuulo 
uiideri»i'cu!iar.st:itutory  |ln)visi(»n^. 

'  Butrher  v.  Rogers.  (50  JIo.  138; 
NichoLson  v.  Caress,  45  Iiid.  479. 

»  TaKKart  v.  Risley,  4  Orog.  235. 
The  word  "givO"  wan  formerly 
held,  in  the  alwenco  of  express 
covenantfl,  tocon.stilutea  warranty 
during  the  life  of  the  grantor. 
Dow  V.  Lewis,  4  Ciray  (.Mass.), 408. 


1<)2  A15STRACTS    OF    TITLE. 

inir  the  description.  AVlien  the  usual  covcunnts  of  ^oizin 
warrantv,  etc.,  appear  in  the  deed  they  are  immaterial,  and 
mav  he  omitted.  Teclinical  words  nf  grant  possess  little  of 
their  former  efficacy,  though  it  is  still  true  that  to  constitute 
a  conveyance  there  must  be  sulRcient  words  showing  an  in- 
tention to  grant  an  estate,'  yet  ever}^  part  of  the  instrument 
mav  be  resorted  to  for  the  purpose  of  ascertaining  its  true 
meaning  and  the  intention  of  the  parties,"  and  generally,  any 
writing  that  suiliciently  identifies  the  parties,  describes  the 
land,  acknowledges  a  sale  of  vendors  rights  for  a  valuable 
consideration,  and  is  signed,  sealed  and  delivered,  is  a  good 
deed  of  l)argain  and  sale,'  and  if  comjilete  in  other  res])ects 
has  been  held  to  constitute  a  valid  conveyance  even  though 
all  words  of  grant  are  omitted.' 

§11.  Words  of  Iiilieritaiice  and  Limitation.  Closely 
allied  to  the  foregoing  are  the  ^vords  of  purchase,  inheritance 
and  limitation,  once  of  the  very  essence  of  the  deed,*  but 
now,  by  reason  of  swec])ing  statutory  provisions,  compar- 
atively without  value  of  legal  effect.  Though  invariably  in- 
serted by  the  conveyancer,  Avords  of  inheritance  are  no  longer 
necessary  to  create  or  convey  a  fee,  and  as  a  rule,  every 
grant  of  lands  will  pass  all  the  estate  or  interest  of  the 
grantor,  unless  a  different  interest  shall  appear  by  express 
terms  or  necessary  implication,"  the  question  of  the  estate 
transferred  being  determined  rather  by  the  end  sought  to  be 
attained  by  the  grantor,  than  by  the  language  employed.' 
The  usual  and  ordinary  words  for  conveying  an  estate  in 
fee  simple  are  "  heirs,"  or  "  heirs  and  assigns  forever,"  The 
rule  in  Shelly's  case,  with  its  refinements  and  subtilties  does 

'  McKinney  t\  Settles,  31  Mo.  511;  219.    Tliis  case    has  been  sevcrdy 

Brewton  v.  Watson,  67  Ala.   121;  criticised   in    subsequent  decisions 

BrowTi  V.  Manter,  21  N.  H.  528.  and  frequently  reje<:'ted. 

'Saunders  v.  Hancs,  44    N.  Y.  *  Jackson  v.  Meyers,  3  John.  388. 

3.j3;  Callins  r.  Lavalle,  44  Vt.  2:]0;  «  Merritt  v.  Disney,  48  3Id.    344; 

American  Emigrant  Co.  v.  Clark,  Beecher  v.  Hicks,  12  Reporter,  125. 

62  Iowa,  182.  ">  Hawkins  v.  Cliampion,  36   Md. 

^  Cliiles  V.  Conley's  Heirs,  2  Dana  83;  Kirk  v.  Burkholtz,  3  Tenn.  Ch. 

(Ky.),  21.  425. 

♦  Bridge  r.  Wellington,*  1  Mass. 


FORMAL    PARTS    OF   DEEDS.  193 

not  now  prevail  to  any  extent  in  the  United  States,  and  l)v 
statute  entails  are  limited  to  the  first  degree  only,  the  llrst 
grantee  taking  a  life  estate,  while  the  remainder  passes  in 
fee  simple  to  the  second  taker.'  The  elTect  of  tiie  nde  in 
Shelly's  case  is  still  manifest  in  every  State,  hut  as  a  wide 
ditferejice  of  interpretation  is  displayed  in  the  decided  cases, 
it  is  diliicult  to  prescribe  a  rule  that  shall  be  sidliciently  cer- 
tain. Generally,  if  an  estate  of  freehold  be  limited  to  th»> 
ancestor  for  life,  and  the  inheritance  to  his  heirs,  either 
mediately  or  immediately,  the  first  taker  takes  the  wliole 
estate;  if  it  be  limited  to  the  heirs  of  his  bod}^,  he  takes  a 
fee  tail;  if  to  his  heirs  generally,  a  fee  simple.  The  words 
"  heirs "'  or  "  heirs  of  the  body  "  in  such  case,  are  words  of 
limitation  and  not  of  purchase.'  The  rule  in  Shell^^'scaseis, 
however,  at  most  a  technical  rule  of  construction,  and  must 
give  way  to  the  clear  intent  of  the  donor  when  that  inten- 
tion can  be  ascertained  from  the  instrument  in  whicli  the 
words  su]»posed  to  be  of  limitation  are  used."  "Whenever 
the  words  of  inheritance  depart  from  the  usual  form  for 
granting  a  fee,  and  seek  to  create  a  vested  or  contingent  re- 
mainder in  some  person  otlier  than  the  grantee  named,  the 
only  safe  method  for  the  examiner  is  to  set  forth  the  g-rant- 
ing  clause  verbatim,  and  as  a  further  precaution  the  liaben- 
dum  should  also  be  shown.  To  create  an  estate  tail  or 
remainder,  there  must  be  the  use  of  technical  words  desig- 
nating a  class  of  lieirs  to  take  in  succession,  or  language  dis- 
closing a  clear  intent  to  that  effect,*  The  word  "  children," 
though  fretjuently  used,  is  usually  a  word  of  jnii-chase, 
renuirin'i:  strou"^  lanfjuage  to  chan<^e  it  into  a  word  of  limita- 
tion.  In  tlie  pre})aration  of  abstracts  tlieso  cpiestions  are 
too  frequent!}'  lost  sight  of  by  the  examiner,  who  fails  to 
give  to  them  and  <jther  seemingly  minor  details,  the  atten- 
tion their  iiiii)oi'tance  deserves. 

'  nutk-r  V.  IIiu-8ti8,  C^  111.  .lOJ.  II.  nr.T:  Stiiith  v.  Hl.x-k.  OT  Ol.icSt. 

MJutlerv.   llm^tLs,  OH   Hi.    VJi;  4HS:  Kiuji  v.  Itt-.i.  ."jO  Iiid.  1. 
conmilt  P'fjHtor  f,    Shrevc,   6   Mush  »  H.lhlay  v.  Eup'!.  K'7  HI-   1^'-- 

(Ky,).  ."ilO;  Unulfonl   v.  Ilr.wcll.  12  Mli.l.Il.toii    r.  Siuitli,  1    I'ul.hv. 

ALi.  •122;  l".*riiiit  v.  JackHoii,  50  N.  (Ttiin.)  HI. 
13 


1'J-i  ABSTRACTS   OF    TITLE. 

§  12.  Description  of  Property.  After  the  parties  to 
tlie  conveyance,  the  thing  or  subject-matter  conveyed  is 
the  g-reat  essential,'  but  for  convenience  and  following  the 
orilerly  parts  of  the  deed,  it  sliould  appear  ininiediately 
after  the  words  of  conveyance.  In  abstracting  the  deed  it 
is  customary  to  condense  the  introductory  sentences  of  the 
descripti(jn  which  allude  generally  to  the  county  and  State, 
but  from  this  point,  or  after  the  words  ''  to  wit,"  the  entire 
descrij)tion,  as  found  in  the  deed,  should  be  set  forth  verba- 
tim. It  is  the  custom  also,  of  many  examiners,  to  refer  for 
descrij^tions  to  the  caption  of  the  abstract,  or  to  other  in- 
struments in  the  chain,  containing  the  same  or  sul)stantially 
the  same  description;  a  practice  as  slovenlv,  as  dangerous 
and  one  strongly  to  be  reprehended.  Both  in  preparing 
the  al)stract  and  in  passing  upon  the  title,  the  description 
should  in  every  case  be  compared  with  the  caption,  and  any 
deviation  therefrom,  either  in  form  or  substance,  carefully 
noted. 

§13.  Description — Sufficiencj'.  Every  deed  of  convey- 
ance, in  order  to  transfer  title,  must,  either  in  terms  or  by 
reference  or  other  designation,  give  such  description  of  the 
subject-matter  intended  to  be  conveyed  as  will  be  sufficient 
to  identify  the  same  with  reasonable  certainty."  It  is  not 
essential,  however,  that  the  deed  should  on  its  face  ascer- 
tain the  limits  or  quantity  of  the  estate  granted  or  the  par- 
ticular property  conveyed,  but  it  will  be  sufficient  if  it 
refers  to  certain  known  objects  or  things,  and  provides  defi- 
nite means  by  which  the  same  may  be  readily  ascertained 
and  known;'  and  where  words  of  general  description  only 
are  used,  oral  evidence  may  be  resorted  to  for  the  purpose 
of  ascertaining  the  particular  sul)ject-matter  to  which  they 
apply.*  Any  description  adopted  by  which  the  identity  of 
the  premises  intended  to  be  conveyed  is  established,  will  be 

'  Whitaker  v.  Miller,  83  111.  381.  Dwight  v.  Packard,   49  Mich.  G14. 

*  Berry  v.  Derwart,  11  Reporter,  '•  Coleman  v.  Improvemeiiu  Oc, 

195;  Long  v.  Wagoner,  47  Mo.  178.  94  N.  Y.  229. 
3  Coats    V.    Taft,  12    Wis.    388; 


FORMAL  PARTS  OF  DEEDS.  105 

sufficient,'  and  a  description  not  sufficient!}'  certain  in  itself 
may  be  made  so  b\'  reference  to  other  deeds  in  Avliicli  it  is 
sufficient/ 

§  14.  Description — Construction.  It  is  a  rule  of  con- 
struction as  to  the  description  of  premises  in  a  deed,  that  the 
least  certain  and  material  parts  must  give  Avay  to  the  more 
certain  and  material.  Quantity  is  never  allowed  to  control 
courses  and  distances/  and  courses  and  distances  must  yield 
to  fixed  monuments  and  natural  objects  also  referred  to 
therein.*  But  where  the  monuments,  if  once  existing,  are 
gone,  and  the  place  where  they  originally  stood  can  not  be 
ascertained,  the  courses  and  distances  when  explicit  must 
govern,"  and  where  the  boundaries  are  doubtful,  quantity 
often  becomes  a  controlling  consideration.'  Nor  will  the 
rule  that  monuments,  natural  or  artiiicial,  rather  than 
courses  and  distances,  control  in  the  construction  of  a  con- 
veyance, be  enforced  when  the  instrument  would  thereby  be 
defeated,  and  when  the  rejection  of  a  call  for  a  monument 
would  reconcile  other  parts  of  the  description  and  leave 
enough  to  identify  the  land.'  AVhere  a  deed  calls  for  a  nat- 
ural object  and  the  line  gives  out  before  reaching  it,  the  line 
must  be  extended  to  the  natural  object,  and  the  distance 
disrofjarded; "  but  where  no  monuments  are  referred  to  and 
none  are  intended  to  be  afterward  designated,  the  distance 
stated  in  the  grant  must  govern  the  location.*  An  erroneous 
description  of  land  by  nuinbi'rs  will  not  control  other 
descriptive  particulars  which  indicate  the  laml  witli  cor- 
tuinty." 

'  Smith  V.  Crawfoni,  81  111.  296;  Clark    v.   Wethy,   19  Wond.    ^20. 

All.-n  r.  IJaU-s,  «  rick.  400.  "  Wiiiaiis  r.  ('Ii.'iiy,  nr)   Cal.   5(57. 

'Uusst'll   V.   Drown,   41    HI.  1S4;  ••  Wliito  v.   Luninj,',   «:J  U.  S.  (:J 

Cre«llf  r.  HayH.  88  N.  C.  321.  Otto)  r^rt. 

»Ui.sliop  u.  Morgan ,   82  III.   r.2;  »  Stricklaii.l   v.  DraiiKliun,  88  N. 

Saunders    i».  .S<:luuael/.k',    49   Cal.  C.  ol."). 

,"59.  »Nt'Kl)au(«r  r.  Smith.  44  N.  J.  I.. 

♦DuiKint  V.  Davis,  '\0  Wis.   170;  072. 

Sandi-rH  »'.  Kl'iri<lj;«',   40    Iowa,  :'.l;  "  Bradshaw  f.  Bra<ll)iiry.  0-1  Mo. 

Cunniri«hainr.('iirtiH,.')7N.  II.  1.'.7.  .'JIM;  Moiitgointiy   r.  Jultii^un,     M 

-brew   V.   hmilii,   40   N.  Y.  2Ul;  Ark.  02. 


100  ABSTRACTS    OK    TITLE. 

AVhere,  as  is  oCtcn  the  case,  the  conve\'aiKor  fi'oiii  an  over 
anxiety  to  identify  the  proi)erty,  makes  two  clescrijjtions,  the 
one,  as  it  were,  snpcracldcd  to  the  other,  and  one  description 
hciiig  coni[)lete  and  sutlicient  in  itself,  the  other  incorrect, 
the  incorrect  desci'iption,  or  feature,  or  circumstance,  may 
he  rejected  as  surplusaije,  and  tlie  complete  and  correct 
descri})tion  allowed  to  stand  alone.' 

It  must  be  remembered,  however,  that,  notwithstanding, 
the  utmost  liberality  is  allowed  in  the  construction  of 
descriptions,  so  as,  if  possible,  to  effectuate  the  intention  of 
the  parties,  nothing  passes  by  a  deed  exc('i)t  what  is 
described  in  it,  whatever  the  intention  of  the  ])arties  may 
have  been,  and  extrinsic  evidence  is  inadmissible  to  make 
the  deed  operate  upon  land  not  embraced  in  the  descriptive 
words." 

§  15.  Special  Recitals.  Immediately  following  the  de- 
scription are  usually  found  the  special  recitals,  reservations, 
exceptions,  conditions,  etc.,  though  in  forms  specially  pre- 
pared they  may  also  be  found  in  that  part  of  the  deed  tech- 
nically known  as  the  reddendum,  and  to  insure  certainty  all 
of  the  conveyance  from  the  habendum  to  the  testimonium 
clause  should  be  carefully  read  by  the  examiner  when  com- 
piling the  abstract.  All  special  matter,  including  recitals, 
references,  exceptions,  reservations,  conditions,  limitations, 
etc.,  should  be  set  forth  fully  in  an  orderly  manner  and 
whenever  practicable,  in  the  identical  language  of  the  deed 
and  verified  by  quotation  marks.  When  not  so  treated,  or 
where  slight  condensation  may  be  advantageously  employed, 
the  matter  should  be  preceded  by  a  parenthetical  statement, 
to  indicate  that  what  follows  is  a  transcription  and  not  an 
observation  by  the  examiner,  thus : ''  Said  grantor  (it  is  stated) 
to,"  etc.  Eecitals  in  deeds  bind  the  parties  thereto,  and 
those  claiming  under  them,'  and  a  grantee  is  chargeable 

'Kruse    v.   Wilson,   79  111.   233;  'Coleman  v.   Improvement  Co., 

Myer  v.  Ladd,  26  111.  415;  Wade  v.  94  N.  Y.  229. 

Doray,  50  Cal.  3TG;  Credle  v.  Hays,  ^Fisk  v.  Flores,  43  Tex.  340;  La- 

88  N.  C.  321.  mar  v.  Turner,  48  Cla.  329. 


FORMAL    PARTS    OF    DEEDS.  107 

with  notice  of  facts  recited  in  a  deed  ■which  constitutes  a 
necessary  part  of  his  chain  of  title,'  but  such  recitals  are  not 
evidence  aofainst  one  who  holds  under  a  title  emanating  from 
an  independent  source.' 

§  lO.  The  Habemlum.  It  is  rarely  that  the  attenti<^n  of 
examiner  or  counsel  is  called  to  the  habendum  of  a  deed, 
which,  as  a  rule,  uidess  containing  a  declaration  of  trust,  or 
deiining  the  limitation  of  an  estate,  may  be  passed  without 
notice  in  the  ab^tmct.  Though  formerly,  like  many  other 
technical  features,  of  great  importance,  it  has  now  degener- 
ated into  a  mere  form,'  and  in  the  statutory  conveyances 
now  in  use  in  many  of  the  States,  is  entirely  omitted.  In 
general  the  habendum  refers  to  the  premises  and  declares 
what  estate  the  grantee  shall  hold.  It  may  sometimes  en- 
large or  diminish  the  grant,  when  showing  a  clear  intention 
so  to  do,*  but  can  not  perform  the  office  of  divesting  the 
estate  already  vested  by  the  deed,  and  is  void  if  re]>ug- 
nant  thereto.*  Where  the  deed  purports  to  create  a  vested 
or  contingent  reniainder,  or  conveys  property  in  trust,  the 
haljendum  becomes  important,  and  where  no  estate  is  men- 
tioned in  the  granting  clause  it  becomes  efficient  to  declare 
tiie  intention  and  rebut  any  implication  which  would  other- 
wise arise  from  the  omission. 

§  17.  Exceptions  and  Keservatious.  Everything  that 
restrains,  qualifies,  reserves  or  subtracts  from  tlie  grant  or 
thing  granted,  should  be  shown  on  the  abstract  with  mi- 
nuten(,'ss  of  detail,  and  to  that  end  it  is  desirable  that  every- 
thing in  the  nature  of  an  exception  or  reservation  bo  copied 
verbatim.  Both  a  reseivation  and  an  excejition  must  be  a 
part,  or  arise  out  of  that  which  is  granted  in  the  (h'ed. 
'i'he  difference  is  tliat  an  exception  is  something  taken  back 
or  out  of  the  estate  th(;n  existing  and  clearly  granted,  while 

'Prinple  v.   Dunn,  37  Wis.  4^10;  »|  Kent  Com.   IC.S;  i  B\k.  Com. 

A«<T   V.  Wcw-ott,    "1«   N.    Y.    'My-,  2D8. 

Hrym;  r.  M<.r.lioiiH4'.  2„'  III.  Co:!;  R.  ^Cuil.in  v.  ll.-aly.  20  Pick.  r.U. 

R,  Co,  V.  K.iin<H|y,  70  III.  avt.  » i{i«k'in  v.  I^.v.-.  7:.'  111.  r.:.;j;  ll.ili- 

» Lamar  v.  Tiinn-r.    18  (ii\.   .ijy;  fax  r.  SUiik.  IM  Vt.  'ilA;  Ilolunjioti 

KiTfcKJt  f.  Cnjnin,  lOj  III.  0()U.  r.  I'liyn*-,  W  .Min-s.  OIK). 


lOS  ABSTRACTS    OF   TITLE. 

11  reservation  is  something  issuing  out  of  what  is  granted." 
Thus,  an  exception  is  always  a  part  of  the  thing  granletl. 
and  of  a  thing  in  being."  A  reservation  is  of  a  thing  not  in 
being,  but  is  newly  created  out  of  the  land  or  property 
demised.'  The  usual  operative  words  to  create  an  exception 
are,  "  saving  and  excepting,"  etc.,  but  the  terms  are  often 
used  indiscriminately  and  frequently  in  conjunction, as  "ex- 
cepting and  reserving,''  etc.,  and  the  difference  between  the 
two  is  so  obscure  in  many  cases  that  it  has  not  been  observed.* 
Although  there  is  a  technical  distinction  between  the  tenns, 
yet  where  "  reserving  "  is  used  with  evident  intent  to  create 
an  exception,  effect  should  be  given  in  that  sense.'  A  reser- 
vation in  a  deed  will  never  operate  to  give  title  to  a  stran- 
ger, though  it  may,  when  intended  by  the  parties  as  an  ex- 
ception, aiford  notice  to  the  grantee  of  adverse  claims  in  or 
to  the  thing  excepted  or  reserved."  A  restriction  may  take 
effect  as  a  reservation,  if  it  does  not  necessarily  deprive  the 
grantee  of  the  essential  benefits  of  the  grant.'  The  same 
certainty  of  description  is  required  in  an  exception  out  of  a 
grant  as  in  tlie  grant  itself,  as  where  a  deed  excepts  out  of 
the  conveyance  one  acre  of  land,  and  there  is  nothing  in  the 
exception  to  locate  it  upon  any  particular  part  of  the  tract, 
the  exception  is  void  for  uncertainty,  and  the  grantee  takes 
the  entire  tract.*  Reservations  and  exceptions,  when  ex- 
pressed in  a  doubtful  manner,  are  to  be  construed  most 
strongly  against  the  grantor,'  yet  if  the  intentions  of  the 
parties  can  be  fairly  ascertained  from  the  instruments,  such 
intention  will  govern  in  its  construction.'" 

§  18,     Conditions   and   Limitations.     Analogous  to  the 
exceptions   and   reservations  of  a  deed  are   the   conditions 

'Adams  v.  Morse,   51   Me.   497;  *  Wost  Point  Ii'on  Co.  r.  Reymert, 

Kister  v.  Reeser,  12  Rep.  377.  45  X.  Y.  703. 

2  Winthrop  v.   Fairbanks,  41  Me.  '  Gay  v.  Walker,  36  Me.  54. 

307.  8:\Xooney  v.   Cooledge,   30    Ark. 

»Gay  V.  Walker,  36  Me.  54.  640. 

*Wirithrop  u.  Fairbanks,  41  Me.  ^Wj'man  v.   Farrar,   35  Me.  64; 

307.  Duryea  v.  New  York,  62  N.  Y.  592. 

'  Sloan  V.  Lawrence  Furnace  Co.,  '"  Wiley  v.  SirJorus,  41  Iowa,  224. 
29  Ohio  St.  568. 


FORMAL   PARTS    OF   DEEDS.  109 

qualifying  tlic  grant  and  limitations  or  restrictions  of  its 
use,  both  of  which  demand  the  closest  attention  on  the  part 
of  examiner  and  counsel.  As  in  the  case  of  reservations, 
the  conditional  or  restrictive  clauses  should  be  copied  word 
for  word,  the  abstract  showing  them  to  be  literal  (piotations. 
Conditions  frequently  partake  of  the  nature  of  the  consider- 
ation for  the  conveyance,  and  declare  its  true  motive,  and 
as  such  it  becomes  doubly  important  that  they  be  correctly 
shown.  Conditions  are  divided  into  precedent  and  subse- 
quent, the  former  beingsomething  which  must  be  punctually 
performed  before  the  estate  can  vest,  and  deeds  containing 
such  expressly  declare  that  the  grant  is  iij"^'^^  such  con- 
dition. A  condition  subsequent  indicates  something  to  be 
performed  after  the  estate  vests,  the  continuance  of  such 
estate  depending  upon  its  performance.  T]ie  character  of 
conditions,  precedent  or  subsequent,  depends  upon  the  in- 
tentions of  the  parties,  as  shown  by  a  proper  construction 
of  the  whole  instrument,  not  upon  the  precise  or  technical 
words  used.'  A  deed  upon  condition  subsecpient  conveys 
the  fee  with  all  its  qualities  of  transmission.  Thecoiulition 
has  no  effect  to  limit  the  title,  until  it  becomes  operative  to 
defeat  it.* 

The  law  docs  not  favor  forfcitui-es,'  and  conditions  to 
avoid  an  estate  must  be  strictly  construed;  no  language  will 
be  construed  into  such  a  condition  conti-ary  to  the  intent  of 
the  ])arties,  nor  wlien  any  other  reasonable  construction  can 
be  given  to  it.*  They  will  not  bind  the  heirs  or  assigns 
unless  expressly  mentioned,'  nor  will  a  conditional  grant 
revert  on  breach,  there  being  no  clause  providing  for  for- 
feiture or  re-entry,'  and  until  defeated  by  an  actual  entry 
made  for  the  i)urpose  of  claiming  a  forfeiture,  by  sonu;  oiu* 
having  tiio  right  so  to  do,  the  estate  continues  in  the 
grantees,'     Conditional  grants,  though  sometimes  running 

'Ili>K:inu.    Walker,    1   Win.   Kl;  *  \Vi  r  t>.  SiiiifnoiiH,  55  Win.  (VM . 

SheppanI   v.  TIk.iikw.  L'«   Ark.  IU7.  ^  Viv^v  v.  raliii.T.  48  N.   II.  aH5. 

*Sliallu<;k  V.  llawliiips,    li'.i  .Ma..s.  *l'a<kai<l  r.  Aiiu-m.  H2  MasH.  !l'J7. 

23.  'Ohk.mmI    v.   AlilMitt.  5H   M...   7a; 

» VoriH  V.  K<-nBlia\v.   -I'J   III.    rJo;  Guild  r.  Uiclmnib,  M  Mjwh.  :W'J. 
Iloyt  I'.  Kimball,  lU  N.  II.  'A-^'i. 


200  ABSTUACTS    OF    TITLE. 

to  individuals,  are  more  frequently  fountl  in  dedicatory  con- 
veyances, or  deeds'  to  religious,  charitable  or  educational 
institutions. 

llestrictions  on  the  use  of  projicrty  conveyed  are  of  more 
fre(|uent  occurrence,  but,  unless  also  a  condition  subsequent, 
do  not  work  a  forfeiture  in  their  violation.  They  consist 
usually  of  building  regulations,  sanitaiy  measures  and  m'jit- 
ters  involving  the  good  morals  of  community,  as  prohibitfon 
of  the  sale  of  intoxicating  liquors  on  the  premises,  etc. 
They  are  designed  ordinarily  to  prevent  such  use  of  the 
premises  by  the  grantee  and  those  claiming  under  him,  as 
might  diminish  the  value  of  the  residue  of  the  land  be- 
longing to  the  grantor  or  im])air  its  eligibility  for  paj'tic- 
ular  purposes,  and  that  such  a  design  is  a  legitimate 
one,  and  may  be  carried  out  consistently  with  the  rules 
of  hiAV  by  reasonable  and  proper  restrictions,  can  not  be 
doubted.  Every  owner  of  property  has  the  right  to  so 
deal  with  it,  as  to  restrain  its  use  by  his  grantee  within  such 
limits  as  to  prevent  its  a])propriation  to  purposes  which  will 
impair  the  value  or  diminish  the  pleasure  of  the  enjoyment 
of  the  land  which  he  retains.'  Such  restrictions  are  recog- 
nized and  upheld  by  the  courts,  and  the  violation  of  same 
will  be  restrained  by  injunction.^     A  condition,  whether  pre- 

'  The  only  restriction  on  this  ri^lit  ive  assigns.  Whitnej'  v.  Rj'.  Co., 
is  that  it  sliall  be  exercised  reason-  11  Gray  (Mass.),  359;  Atlantic  Dock 
ably,  with  clue  regard  to  public  Co.  v.  Leavitt,  54^  N.  Y.  35;  Wat- 
poUcy,  and  without  creating  any  rous  v.  Allen,  57  Mich.  3G2;  and 
unlawful  restraint  of  trade.  Nor  see  Warvelle  on  Vendoi-s,  p.  439. 
does  there  seem  to  be  any  doubt  '^  Dorr  t'.IIan-ahan,  101  Mass.  531; 
that  in  whatever  language  such  a  Cowell  v.  Col.  Springs  Co.,  100 
restraint  is  couched,  whether  in  the  U.  S.  55;  Clark  v.  Martin,  49  Pa. 
teclinical  form  of  a  condition  or  St.  289.  Where  restrictions  upon 
covenant,  or  of  a  reservation  or  building  are  inserted  in  a  deed  as 
excei)tit>n,  or  merely  by  words  a  part  of  a  scheme  for  a  plan  of 
wliich  give  to  the  acceptance  of  the  improvement,  such  restrictions,  as 
deed  by  the  grantee  the  force  and  a  rule,  though  spoken  of  as  con- 
effect  of  a  parol  agreement;  it  is  ditions,  are  not  to  be  deemed  tech- 
binding  as  between  the  immediate  nical  conditions  whose  breach  in- 
parties  thereto,  and  may  be  en-  volves  forfeiture.  Ayling  v.  Kra- 
forced  by  or  against  their  respect-  nier,  133  Mass.  12. 


FORMAL  PARTS  OF  DEEDS.  201 

cedent  or  subsequent,  is  not  binding  after  the  party  imposing 
it  has  rendered  its  performance  impossible  or  unnecessary.' 
§  19.  Covenants.  The  covenants  of  a  deed  add  nothing 
to  its  efficiency  as  a  means  of  conveyance,  and  a  quitchiim 
deed  will  as  elTectually  pass  the  title  and  covenants  running 
with  the  land  as  a  deed  of  bargain  and  sale,  if  no  words 
restrict  its  meaning.'  The  covenant  clause  usually  imme- 
diately precedes  the  testimonium,  and  when  consisting 
only  of  the  conventional  assurance  of  seizin,  right  to  con- 
vey, freedom  from  incumbrance,  quiet  enjoyment  and  war- 
ranty, may  be  ]iassed  with  simple  notice,  or  if  the  deed  is  in 
other  respects  regular,  and  is  described  in  the  abstract  as  a 
''  "Warranty  Deed,''  there  seems  no  good  reason  why  any 
further  mention  should  be  made,  particularly  if  the  client 
knows  such  to  be  the  examiner's  custom.  There  is  no 
uniform  rule  regarding  tlieir  insertion,  and  usually  in  ordi- 
nary cases  they  are  omitted.  Special  or  unusual  covenants 
or  such  iis  seek  to  limit  the  grantor's  liability,  should  be 
noticed  at  such  lengtli  as  their  iinjiortance  seems  t(^  demand, 
and  if  necessary  for  a  proper  undei"standing,  be  literally 
transcribed.  Covenants  are  either  express  or  implied.  Im- 
])lied  covenants  must  be  consistent  with,  and  not  contrary 
to,  the  express  covenants,'  and  Avliere  a  deed  contains  l>oth, 
the  latter  qualifies  and  restrains  the  former.*  Covenants  are 
also  classified  as  pei*sonal  and  real,  or  those  whieh  I'un  with 
the  land,  though  some  confusion  exists  as  to  the  division  be- 
tween them.'  No  |Kiculiar  words  are  needed  to  raise  a  cove- 
nant,' and  whatever  shows  the  intent  of  the  i)arties  to  bind 
themselves  to  the  i>erformanco  of  a  stipulation  may  Im? 
deemed  a  covenant  without  regaid  to  the  form  of  expression.' 
The  ancient  comiiioii  law  wanaiity  has  been  superseded  i>v 

'Jciniwt'.    R.  R.  Oj.,    11   \V.   V:i.  »  OitfH  w.  Cal.lwoll.  7.  Mju«.  Oa 

51 1,  *  K.-iit  V.  W.lch.    7   Johns.  2r,H; 

>MorKnn  V,  Cliiytrin,   01   111.    nr,;  Siiiniicr  f.  Willi.iniK,  n  M.i.s8.  2(ll. 

Itiwft'.   H.fkfr,  HO  IikI.  l*)!;    Pin-  '  2  l*«>u.  I.a\v  Dirt.  :IJ7. 

^|rrl-i^  V.  Walkinn,  l."!  V't.  171*:  \Vliit4«  •  Ncwcomi)  v.   l'nt*l)n-y,  8  Mrt. 

r.    Wliitri.-v.  n   Mi't.    81;    Hunt  f.  4(X\. 

Anii.I..n.  I  Hill,  :51.>.  '  T;i\  !..r  r.  I'n  ,l.,(i,  7U  Ta.  St.  -130. 


2l>2  ARSTIIACTS    OF    TITLE. 

jiersonal  covenants,  and  never  bad  any  practical  existence  in 
this  coiinti'V.'  The  weight  of  American  autiiority  holds  that 
the  covenants  of  Seizin,  good  right  to  conve}'  and  IV(M'(h;m 
from  incumbranci>s,  are  in  jtnst'uti,  and  do  not  run  with  the 
hmd,  and  if  broken  at  all,  are  broken  at  the  instant  of  their 
creation."  The  claim  for  damages  thereby  becomes  personal 
in  its  nature  to  the  grantee,  and  is  not  transferred  l)y  a  con- 
veyance to  a  subsequent  grantee/  Several  of  the  States, 
following  the  English  rule,  permit  an  action  hy  a  remote 
grantee  in  his  own  name  where  the  substantial  l)reach  of  the 
covenant  occurs  after  the  assignment,  and  the  whole  actual 
damages  are  sustained  by  the  assignee.*  Where  privity  of 
estate  exists  between  the  parties,  and  the  covenant  is  one 
about  or  affecting  the  land  granted,  and  tends  directly  and 
necessarily  to  enhance  its  value,  or  render  it  more  beneficial 
to  those  by  whom  it  is  ow^ned,  the  covenant  is  said  to  be 
incident  to  the  land,  and  binding  on  those  in  whom  the  title 
subsequently  vests,"  and  it  is  a  general  principle  that  cove- 
nants which  run  with  the  land  pass  only  with  the  legal  title 
thereto."  The  covenant  of  warranty  extends  only  to  the 
right,  title  and  interest  in  the  lands  bargained  and  sold  by 
the  vendor.  The  covenants  can  not  enlarge  the  premises.' 
Where  a  covenant  is  to  be  im])lied  from  statutory  words,  the 
very  words  of  the  statute  must  be  used  to  raise  it.*  In  a 
conveyance  in  form  a  "  Wan-anty  Deed,"  but  omitting  any 
of  the  customary  covenants,  it  is  well  to  note  the  omission, 
and  in  such  cases,  where,  by  statute  covenants  are  im})lied 
from  specific  words  of  grant,  the  operative  words  of  convey- 
ance should  be  inserted. 

'  Jones  V.  Franklyn,  30  Ark.  631.  field  v.   Homestead  Co.,  82  Iowa, 

•^  Tone  V.  Wilson,  81  111.  529;  Ful-  317;  Cole  v.  Kimball,  52  Vt.  639. 

ler  V.  Jillett,  9  Reporter,  367.  ^  Wooliscroft  v.  Norton,  15  Wis. 

»  Salmon  v.  Vallejo,  41  Cal.  481;  198;  Wlieeler  v.  Schad,  7  Nev.  204. 

Dale  V.  Shively,  8  Kan.  276;  Pills-  « Wright  u.  Speny,  21  Wis.  331. 

bury  r.  Mitchell,  5  Wis.   17;  Mois-  'Lamb  v.  Wakefield,  1  Sawyer, 

ton  V.  Hobbs,  2  Mass.  433;  Green-  251. 

by  V.  Kellog.  2  Johns.  2.  ^vipond  v.  Huribut,  22  111.  2.'>6. 

•»  Richard  v.  Bent,  59  lU.  38;Scho- 


FUKMAL  TARTS  OF  DEEDS.  203 

§  20.  Execution.  The  execution  of  a  deed  technically 
comprises  the  signing,  sealing  and  delivery  '  and  in  some 
States  the  attestation  of  witnesses  as  well,  but  the  attention 
of  examiner  and  counsel  need  only  be  directed  to  the  two 
former,  and  whei-e  required  by  law,  the  attest4ition.  The 
laws  of  the  various  States  on  the  subject  of  execution,  though 
preserving  a  general  harmony,  are  by  no  means  uniform 
nor  have  they  always  been  the  same  during  the  govern- 
mental existence.  The  examiner  should  be  fully  posted  on 
all  the  changes  of  the  law  in  respect  to  the  execution  of 
deeds  in  his  own  State,  and  carefully  observe  and  note  in  the 
abstract  any  defects  or  errors,  in  signatures,  seals  or  attesta- 
tion, and  any  non-compliance  with  statutory  requirements. 
Extra  vigilance  will  be  required  in  the  cases  of  married 
women,  conveyances  by  delegated  authority'  and  corpora- 
tions. 

§  21.  Tlie  Signature.  Sealing,  not  signing,  was  the 
sine  qua  no7i  to  the  validity  of  the  common  law  deed,  and  a 
signature  was  not  considered  necessary."  Sealing  is  now  of 
little  moment,  while  in  several  States  it  is  entirely  dis- 
pensed with,  and  the  deed  derives  its  efficacy  from  the 
signature.    An  unsigned  deed,  though  duly  attested,  acknowl- 

'Tliorp  V.   Keokuk  Ck)alCo.,48  method  of  writing  the  name  and 

N.  Y.  233.  making  tlie  sign  of  the  cross.     Ily 

«Coke,  Lit.  L.  1,  C.  5,  §  40.     Tliis  tlie  st^itute  of  29  Cliarles  II,   for 

wasdouljtiess  occasi(>ne<l  by  reiLs<jn  the  prevention  of  frauds  and  per- 

of  the  very  general  inability  of  the  jurii's,  all   transfei-s  of   land   were 

mass  of  the  jK'ople  to  read  or  write;  re<|iiireil  to  be  pnt  in  writing  and 

Bee  1  Iteevr-s'  Hist.   Eng.  Law,  1.H4,  signed  by  the  parties  making  s;inie, 

note.     Under    the    Saxon  rule    it  ami  this  statute  is  tlie  foundation 

would  seem  that  signing  was  in  of  tli<- Amoricanlawsu|Mtn  thosamo 

general    UBO  provided   the   partii-s  topie.    In  Blaekstone'stimesigning 

were  able   to   writ*;,  and  wliether  docs  nf>t  appear  t<>  havt'luHMi  i-ssen- 

they  cduld  write  or  not  it  wjus  eu.s-  tial  to  validity,  although    hi;   wiys 

t<iiiary    to   alllx    the  sign  c»f   the  (1  Com.  'Mt'i):  "  It  is  Miid  t'O  be  re<|- 

< To-.-.;  but  on  the  Norman  roiKjuist  uisiti-   that    the  ]iarty,  whos<>  d<'<-«l 

waxen    tU'ii\n,    usually   with   some  it  is,  hbonld  sr.il,  and  now  in  most 

HiR^riflc    «h'vif«',    w«r.'    introduced  canes,  1  apprehend,  bhuuld  sign  it 

and  took  the  place  of  the  Saxon  alt>o." 


2!>4  ABSrUACTS    OF   TITLE. 

ed^otl  and  delivered,  is  a  nullity.'  The  law  presumes  that 
in  executing  instruments,  parties  use  their  real  names,  and 
does  not  presume  them  to  have  dill'erent  names.  So,  wliere 
the  record  of  a  deed  purported  to  liave  been  signed  by  Har- 
mon S,  and  acknowledged  by  Iliram  S.,  it  was  held  inad- 
missible to  prove  a  conveyance  by  Hiram,"  as  only  the 
signer  can  acknowledge  as  grantor.  It  is  doubtful,  however, 
whether  this  can  be  received  as  the  accepted  doctrine,  the 
volume  of  autlioiity  inclining  to  the  contrary,  and  gen- 
erally if  the  grantor's  true  name  is  recited  in  the  body  of 
the  deed  and  he  also  acknowledges  it  by  his  true  name,  the 
fact  that  he  signs  it  by  a  wrong  name  does  not  invalidate 
the  conveyance.'  All  variances  of  this  nature,  being  of  the 
essence  of  the  conve^'ance,  require  full  notice.  A  deed 
signed  with  a  mark,  if  otherwise  regular,  may  be  treated  as 
properly  executed,  and  such  is  also  tlie  custom  of  examiners 
where  the  signature  is  in  foreign  language.  Where  an  in- 
strument is  found  with  a  signature  affixed  to  it,  the  presump- 
tion is,  that  the  party  signing  it  knew  its  contents,  and 
there  is  no  distinction  in  this  respect  between  those  who 
can  and  those  who  can  not  write.* 

§  22.  The  Seal.  The  formality  of  a  seal  is  required  in 
most  of  the  States  in  the  execution  of  conveyances  of  land, 
while  in  others  its  use  has  been  dispensed  with  by  statute. 
The  common  la^v  seal  has  been  defined  as   an   impression 

'  Goodman  t\  Randall,  44  Conn.  ha.s  been  held,   may  be  considered 

oJo;  Miller  r.  Ruble,    107   Pa.    St.  by  a  jury  in  connection  with  other 

395.     It  would  seem  as  though  the  circumstances.      See  Saunders  v. 

statement  of  the  text  was  not  only  Hackney,  10  Lea  (Tenn.),  194.     See 

in  consonance  with  law  but  with  also  the  toi^ic   "  Defective  Execu- 

reason  as  well,  yet  late  decisions  in  tion,"  in  the  succeeding  chapter, 

some  localities  would  indicate  that  ^  Boothroyd  v.  Engle,  23    Mich. 

a  deed  is  not  necessarily  void  be-  19. 

cause  the  grantor's  name  is  not  sub-  ^Middleton  v.  Findla,  25  Cal.  76; 

scribed  to  it,  provided  it  is  written  Tustin    v.    Faught,    23    Cal.    237; 

in  his  own  handwriting,   and  so  Zahim    v.    Haller,    71     Ind.    130; 

placed  in  the  body  of  the  deed  as  Houx  v.  Batteen,  68  Mo.  84. 

to  control  the  grant.     The  question  '•Doran  v.  IMullen,  78  111.  343. 
then  becomes  one  of  intent,  ajid  it 


FOKMA.L  PARTS  OF  DEEDS.  205 

iijion  wax  or  wafer  or  some  other  tenacious  sul)st;ince  capable 
of  being  impressed,'  but  as  the  record  woukl  fail  to  show  the 
method  of  sealing,  the  examiner  would  still  be  at  a  loss  to 
know  if  the  deed  had  been  properly  sealed,  were  this  rule 
still  in  ell'ect.  In  a  majority  of  the  States  where  seals  are 
still  required,  a  scrawl  has,  by  statute,  the  force  of  a  seal, 
whenever  it  appears  from  the  bod\'- of  the  instrument,  the 
scrawl  itself,  or  the'place  where  affixed,  that  such  scrawl 
was  intended  for  a  seal.*  Where  a  scrawl  is  alloAved  for  a 
seal,  the  word  "  seal "  at  the  end  of  the  maker's  siirnature, 
and  referred  to  in  the  testimonium  clause,  creates  a  sealed 
instrument;  the  word  "  seal "  is  equivalent  to  a  scrawl.' 
And,  generally,  an  instrument  will  be  treated  as  sealed, 
when  the  intent  to  affix  a  seal  is  clear."  It  has  been  held 
that  where  the  record  was  made  at  a  time,  and  under  a  law, 
permitting  the  registration  of  only  sealed  instruments,  and 
the  instrument  was  in  form  a  warranty  deed,  the  conclusion 
attestation  and  certificate  of  acknowle<lgment,  all  speaking 
of  it  as  under  seal,  it  will  be  presumed  that  the  original  was 
sealed.  And  whether  or  not  it  was  the  legal  duty  of  the 
recorder  to  indicate  upon  the  record  whether  the  instruniciit 
was  sealed,  his  omission  to  do  so  will  not  overcome  the  ]>r('- 
sumption.'  Usually,  if  the  instrument  is  otherwise  in  form, 
it  will  at  least  be  sufficient  to  convey  an  ecjuitable  title,  ar.d 
therefore,  if  recorded,  affect  those  interested  with  consti-uct- 
ive  notice  of  its  contents  as  fully  as  if  sc^nhd."  If  one  of  sev- 
eral obligors  named  in  an  iiisti-iiiiiciit  whicli   jmiports  to  be 

'Warren   v.  Lyn<h,   5  Johns,  'Groiur    r.    Smitli.    Ill  Mo.  'MS; 

(N.  Y.) '-'39.     And  a  laU  r  ch-rision  L<'\vis  r.   UvL-rljy,   28  Ciratt.    (Va.) 

helil  that  tho  wal  of  a  foriMnation  627. 

fir    of    a    private    itidiviihial    iiii-  *  Murton   r.    LcTJoy.    5    S.i\vyi'r, 

pntisiHl  (liri'ctly  iiiH>n  j»a|M'r  willi-  ."ilO;  McCarU-y    f. .  Suix-rvisors,    5S 

out  thu  luu'.  ot  wax  or  other  U-na-  Miss.  71U:  KNnvi-ry   .Mining  Co.  r. 

ciouH  HuliMtan<'«    i»  a  nullity,    al-  lionan/.a  Co.,  1(5  Ni-v.  ;M)2. 

thouj^h  lioldinR  the  contrary  tiH  to  »  SUirkwi-atlicr    v.    .Martin,   28 

walH  of  courts  and  pultlic  onici-rH.  Mi<h.  171;   LcKranc  »•.  Hi   Imiond, 

S<-«.'    FanncrM*   UnuU.   v.    Un'mUl,  3  5  Sawyer  (C.  ft.),  (lol. 

Iliil  (N.  Y.).  W.i.  •  (Jraiidin  r.  Hennand.  z.  2l»  I  Inn 

'  Iludwjn  V.  Toindexter,  12  MIjm.  (N.  Y.),  'M'J. 

run. 


20G  ABSTRACTS    OF    TITLE. 

sealed  by  all  of  them,  neglects  to  afTix  his  seal  thereto,  in  the 
absence  of  other  evidence  he  will  be  deemed  to  have 
ad()i)ted  the  seal  of  someone  of  the  other  signers,  and  will  be 
e(|ually  bound  with  them.'  It  is  unnecessary  to  refer  to  the 
execution  or  any  part  thereof  if  in  all  respects  regular  and 
in  conformity  to  law;  only  defects  or  omissions  recpiire  no- 
tice, and  these  are  best  shown  by  a  literal  transcription. 

§  23.  Attestation.  Subscribing  witnesses  are  not  neces- 
sary at  common  law,"  nor  in  many  of  the  States;  others  re- 
quire an  attestation  by  one  subscribing  witness  only,  while 
in  a  majority  it  is  necessary  that  the  conveyance  be  exe- 
cuted in  the  presence  of  tw^o  witnesses,  who  shall  subscribe 
their  names  to  same  as  such.  As  the  matter  of  attestation 
is  purely  statutory  the  effect  of  omission  in  this  particular 
is  to  be  decided  solely  by  the  application  of  local  law. 
The  usual  and  ordinary  words  of  attestation  are  "  signed, 
sealed  and  delivered  in  our  presence,"  but  the  late  statutory 
forms  of  conveyance  have  somewhat  abbreviated  this 
ancient  form  of  expression,  and  the  words  "  in  our  pres- 
ence," immediately  following  the  testimonium  clause,  and 
followed  by  the  signatures  of  witnesses,  is  a  good  and  suffi- 
cient attestation.  "When  required  at  all,  attestation  is 
usually  a  prerequisite  to  registration,  and  any  informality 
in  this  respect  deprives  the  instrument  of  its  legal  effect  as 
constructive  notice.'  When  proi)crly  attested  no  mention 
seems  necessary  in  the  abstract,  while  omissions  or  defects 
ma}''  be  indicated  by  some  simple  statement;  as,  "  no  sub- 
scribing witnesses  shown  of  record." 

§  24.  Ackiiowletlgment.  The  statutes  of  all  the  States 
provide  for  a  proof  of  execution  of  conveyances  of  land, 
by  an  acknowledgment  of  same  before  some  officer  pro- 
vided by  statute,  and  his  certificate  of  authentication.  Such 
acknowledgment  authorizes  the  production  of  the  instru- 

'  Yale  V.   Flanders,   4  Wis.   9G;  Com.    307;    Dole    v.   Thurlow,    12 

Norvell  v.  Walker,  9  W.  Va.  447;  Met.  (Mass.)  157. 

[Mackay  u.  Bloodgood,   9  Johns.  ^  Pan-et    v.  Shaublmt,    5    Minn. 

(N.  Y.)28.5.  323;  Ross  v.  Worthington,  11 

'Woods  Conv.   239;  2  Black.  Mi'i"   441. 


FORMAL    PARTS    OF    DEEDS. 


207 


ment  in  evidence  without  other  or  further  proof  of  its  exe- 
cution, and  is  usually  a  prerequisite  to  registration.  The 
certitieate  of  authentication  is  no  jiart  of  the  conveyance, 
and  is  not  the  act  of  either  party  to  it,'  but  only  evidence 
in  regard  to  its  execution  and  acknowledgment,  and  like  all 
other  evidence,  should  be  reasonably  considered  and  con- 
strued,' Being  statutory  creations,  greater  strictness  is 
necessary  in  their  construction,  yet  it  is  a  well  settled  rule, 
that  a  sul)stantial  compliance  with  statutes  prescribing  the 
form  and  requisites  of  an  official  certificate  of  acknowledg- 
ment, or  proof  of  deeds,  is  sufficient.  It  is  the  policy  of 
the  law  to  uphold  such  certificates,  whenever  substance  is 
found,  and  not  to  suffer  conveyances,  or  proof  of  them, 
to  be  defeated  by  technical  or  unsubstantial  objections,  anri 
in  construing  them  resort  may  be  had  to  the  deed  or  instru« 
ment,  to  which  they  are  appended,''  yet  nothing  will  be  pre- 
sumed in  favor  of  an  official  certificate,  which  must  state 
all  the  facts  necessary  to  a  valid  official  act,' 

The  official  acts  of  a  notary  should  be  autlienticated  by  his 
se^al,'  i)articularly  when  a  non-resident  of  the  jurisdiction, 
and  usually  in  such  cases  his  certificate  must  also  be  accom- 
jianied  Ity  a  certificate  of  magistracy  and  conformity  l)y 


'  An  acknowledgment  taken  by 
a  grantee  named  in  the  deed  is 
void,  though  the  deed  itself  will 
still  be  valid  and  binding  as  be- 
tween the  p:irties  and  its  execution 
may  Ik?  estiibli.she<l  In'  common 
law  evidence.  Ilogans  i".  Carrutli, 
18  Fla.  5H7. 

•  Harrington  v.  Fiiih.  10  Mich, 
415;  Gray  r,  Ulrich,  8  Kan.  112. 

» \Vell«  r.  Atkinwm,  24  Minn.  101 ; 
TubliH  r.  r;at4-woo<l,  20  Ark.  12H; 
I5anu-t  r.  I'nwkaUL'r,  02  Ala.  IHO; 
Calumet  Co.  v.  Hujwell,  08  III.  -120. 

*\V<trnoro  v.  I>aird,  5  Him.  10(>. 

*Tli<<  nM|uixittwof  a  noUirial  M-al 
are  dfUTiiiini-d  by  the  law  of  tlio 
locality    from    whicli     th<i    olHo-r 


derives  liis authority;  or,  if  that  l>€ 
silent  on  the  subject,  tlicn  by  the 
rules  of  the  common  law.  It  is 
defined  as  an  imjjressioii  on  the 
pai»er  directly,  or  on  wax  or  wafer 
attaclied  thcn't<i,  made  by  the 
odicial  as  and  for  liis  seal.  In  the 
al>Kence  of  exjin-jw  legislation  it 
need  not  contain  his  name,  for  it  is 
the  s<'al,  and  not  it**  composition  or 
character  of  \yhi(h  cnurts  take 
judicial  notice.  Tlw  presumption 
is  that  a  M-al  is  the  ofHcial  Si-al  of 
the  |M'rson  it  pur|>ortM  to  Ih»,  nn<l 
wiio  Hul»urilM-d  the  jurat.  In  He 
riiiliijm,  II  Nat.  Hankr.  Keg,  (No.  5) 

2iy. 


208  ABSTRACTS    OF    TITLE. 

some  olliccr  of  competent  autliorit}'.  The  seal  is  prima 
ficie  evidence  that  the  ]ierson  using  it  is  a  notary,  duly  com- 
missioned,' etc.,  and  its  absence  should  be  l)rielly  noted; 
thus : 

No  notarial  {or  oficial)  seal  shoion  of  record. 

As  a  rule,  a  notarial  certificate  from  another  State  "with- 
out a  seal  or  certificate  of  conformity  will  be  invalid." 

The  law  does  not  usually  in  terms,  impose  upon  tlie 
recorder  the  duty  of  transcribing  the  official  seal  of  the 
officer  taking  the  acknowledgment,  and  many  recorders 
sim})ly  make  same  by  a  scroll  and  the  words  "  seal "  or 
"notarial  seal;'"'  but  whatever  the  form  that  may  be 
employed  to  indicate  the  fact  of  sealing  it  should  be 
observed  by  the  examiner.  It  has  been  held,  in  several 
instances,  that  where  there  is  a  statement  in  the  body  of  the 
certificate,  that  the  officer  who  made  it,  affixed  his  seal 
of  office,  a  presumption  is  raised  that  such  was  the  fact, 
and  that  it  is  not  necessary  that  the  record  copy  should  con- 
tain 2ifac  simile  of  the  seal,  nor  any  indications  thereof  by 
scroll.* 

But  although  a  deed  is  defectivelv  acknowledged,  or  even 
not  acknowledged  at  all,  it  is  good  as  between  the  parties, 
and  su1)sequent  purchasers  with  actual  notice,  and  passes 
title  equally  with  one  duly  certified.  The  certificate  does 
not  affect  the  force  of  the  instrument.'  Acknowledgment, 
however,  is  a  requisite  for  registration,  and  a  deed  must  be 
legally  recordable  to  make  the  record  thereof  constructive 

'  Brown  V.  Pliil.    Blc,  6   Serg.  &  the  record  and  that  it  is  enough  if 

R.  484;    Stephens  v.   Williams,  46  it  appears  from  the  record  that  tlie 

Iowa,  540.  deed  copied  was  under  seal. 

»  Booth    V.     Cook,   20    III.    129;  "  Geary  v.  City  of  Kansas,  61  Mo. 

Texas  Land  Co.   v.   Williams,   51  378;   Griffin  v.  Sheffield,   38  Miss. 

Tex.  51.     See  also  the  local  stat-  359. 

utory  provisions  on  this  subject.  *  Stevens  v.  Hampton,  46  Mo.  404; 

^liiSmith  V.  Ball,   13  Cal.    510,  Gray  v.  Uh-ich,  8  Kan.  112;  Dole  ^^ 

it  was  held  tliat  it  is  not  neeessary  Tliurlow,  12  ^let.  157;  Hoy  v.  Allen, 

that  the  seal  should  be  copied  upon  27  Iowa,  208. 


FORMAL  PAKTS  OF  DEEDS.  209 

notice.'  The  certificate  slioukl  state  the  fact  of  acknowledg- 
ment, and  sliould  lix  the  identity  of  the  party  making  same, 
these  being  tlie  great  essentials  of  every  ollicial  anthentica- 
tion,'  and  a  certificate  defective  in  this  respect  does  not  show 
a  substantial  compliance  with  the  requirements  of  law,  which 
provide  that  the  grantor  shall  be  known,  or  his  identity 
satisfactorily  ]>roved  to  the  certifying  officer.'  "When  regu- 
lar, the  cei'tilicate  is  noticed  at  the  conclusion  of  the  synopsis 
by  a  brief  mention  of  the  fact  and  date,  as  "Acknowledged 
June  1,  1SS2."  Slight  defects  or  omissions  may  be  shown 
in  a  descriptive  way,  as : 

Acl-noioledged  June  1,  ISS?,  hy  WiJTiam  Smith  onhj^  (or) 
In  certlficaie  of  ackno\olc<hj nicnt^  said  grantor^s  name  is 
icriiten  "  Williani  Smi/t/ie" 

Defects  of  form,  insufficient  statement,  or  non-compliance 
with  the  statute,  will  frequently  require  an  entire  or  partial 
ti-anscription  of  the  certificate.  The  acknowledgments  of 
married  women,  corporations,  and  persons  acting  by  <lele- 
gated  power,  or  in  an  official  capacity,  should  be  closely 
scrutinized,  while  in'several  of  the  States  the  deed  is  inef- 
fectual to  convey  the  homestead  estate,  unless  the  statutory 
right  is  specially  waived  in  the  acknowledgment.  As  be- 
tween tlie  immediate  parties,  the  certificate  may  be  impeached 
for  fraud,  collusion,  or  imposition,  but  not  otlierwise,*  but  as 
to  purcliascrs  for  a  valuable  consideration  without  notice,  it 
is  conclusive  as  to  all  matters  which  it  is  the  duty  of  the 
acknowledging  ollicer  to  cer.ify  if  lu^  has  jurisdiction,'  and 
where  an  officer  is  authoi-i/c  I  to  take  acknowh'dgments,  it 

'  Prin.'^le  v.   Dunn,  "1  Wis.    llfl;  M'il/.;r.i;iUI    v.    ril/.-ciald,    100 

BiiHs  r.  Estill,  r.O  Miss.  mO;  Willmd      I!I.  .T-m.',. 
V.  Cramer,  :«5  I'»wa.  22.  'Williams  r.   Hak<r,  71    I'a.  St. 

» Bryan  v.  Hainir<'7.,  8  Tal.  101;  ITO;  Wliarl.m  on  Kviil  ,  {;  lOW; 
P.-rdl  ton  r.  Button.  !{  Conn.  loO;  iV.rlan.l  ;-.  Walrath.  :{;J  htwa,  130; 
Short  V.  Qinliv.  28  III.  219.  Ilowland  r.  Blake,  l»7  L'.  S.  (7  Otto) 

♦.StulUr  r.  Link.  2  Tlionip.  «S:  C.      024. 
(N.  Y.)  80:  Callaw.-iy  r.  Ka«Ii.  .10 
Mo.  430;  Smith  v.  Ciar.kii,  2>l  Win. 
OV,. 

14 


210  ABSTRACTS    OF   TITLE. 

will  1)0  ]>rcsumocl  that  they  were  taken  witliin  his  jurisdic- 
tion.' Tiie  suhject  will  be  further  considered,  with  ])ractical 
cxanii)les,  in  treating  of  specific  conveyances. 

§  25.  Delivery.  No  principle  is  better  estal)lished  by 
the  entire  current  of  modern  authority  than  that  the  delivery 
of  a  deed  is  essential  to  the  transfer  of  the  title."  It  is 
tlie  final  act  consummating  and  confirming  the  conve3'ance, 
and  without  which  all  other  formalities  are  inelTectual.'  A 
deed,  though  duly  executed  and  otherwise  perfect,  wdiilc 
remaining  under  the  control  of  the  grantor,  passes  no  title." 
To  constitute  a  sullicient  delivery,  the  deed  must  not  only 
be  delivered  by  the  grantor,  but  must  be  accepted  by  the 
grantee,'  though  ordinarily  a  delivery  of  a  deed  implies  an 
acceptance."  AVliat  constitutes  a  valid  delivery  or  accept- 
ance has  been  the  subject  of  a  great  diversity  of  opinion  and 
a  vast  numljer  of  reported  decisions,  and  is  still  an  open  and 
unsettled  question  to  be  determined  by  the  ])articular  facts 
of  each  case  under  the  application  of  local  law.  These 
questions,  however  important  in  other  respects,  present  but 
few  features  to  the  examiner,  who  looks  only  at  the  instru- 
ments as  they  appear  upon  the  records,  and  passes  on  their 
sufficiency  and  legal  effect  from  what  is  there  shown.     The 

'  Poople  V.  Snyder,  41  N.  Y.  397.  172;  Commonwealth  r.  Jackson,  10 

«  Mitchell  V.    Bartk-tt.   51  N.  Y.  Bush  (Ky.),  424:  Welch  r.  Sack(>t, 

447;  Stiles  v.   Brown,  16  Vt.  563;  12  Wis.  243;  Oxnaid  v.  Blake,   45 

F)3hev  V.   Beckwith,   30  Wis.    55;  Me.  602. 

Oliver  v.  Stone,  24  Ga.  63.  «  Davenport  u.  Whistler,  46  Iowa, 

3  Youngv.  Gailbeau,  3Wall.  636;  287:  Bundy  v.  Ophir  Iron  Co.,  38 

Whitaker    v.    Miller,    83  111.   381;  Ohio  St.  300;  Bivard  v.  Walker,  39 

Thatcher  v.  St.  Andrew's  Cliurch,  111.  413.     This  is  the  general  rule, 

37  Mich.  261.  and  rests  upon  the  ground  tliat  a 

•*  Egcry  V.  Woodard,  56  i\I*=-.  '!5;  party  is  presumed  to  accept  that 

Fisher  V.  Hall.  41  N.  Y.  416;  Byjns  wliich  is  beneficial  to  him,  yet  the 

V.  Si)encer,  101  111.  429.    Tliough  it  presumption  that  a  party  will  ac- 

seenis  that  a  deed  once  delivered  is  cept  a  deed  because  it  is  beneficial 

not  invalidated  by  the  fact  that  it  to  him  will  never  be  carried  so  far 

remains  in  the  pi>ssession   of  th*^  as  to  consider  him  as  having  ac- 

grantor.    Wallace  v.  Berdell,    97  cepted  it.    Bell  v.  Fanners  Bank, 

N.  Y.  13.  1]  Bush  (Ky.),  34. 

••  Comer  v.   Baldwin,   16  Minn. 


FORMAL  PARTS  OF  DEEDS. 


211 


attestation  clause  usually  recites  that  the  conveyance  was 
"  signed,  sealed  and  delivered,"  etc.,  but  this  has  been  held 
not  in  itself  sufficient  to  establish  a  delivery.* 

The  recording  of  a  deed  not  only  affords  prima  facie 
evidence  of  its  delivery,'  but  when  properly  executed  and 
acknowledged  raises  a  legal  presumption  of  that  fact,'  and, 
where  to  the  grantee's  advantage,  of  its  acceptance  as  well;* 
and  where  the  grantor  in  a  deed  not  actually  delivered 
causes  the  same  to  be  recorded,  it  has  been  held  a  sufficient 
delivery  to  enable  the  grantee  to  hold  the  land  as  against 
the  grantor  and  those  claiming  under  him.'  Generally  a 
delivery  will  be  presumed,  in  the  al)sence  of  direct  e\idence 
of  the  fact,  from  the  concurrent  acts  of  the  parties  recog- 
nizing a  transfer  of  title." 

Ordinarily  a  deed  will  be  presumed  to  have  been  delivered 
on  the  day  it  bears  date,'  though  this  presumption  is  not 
conclusive.'    It  has  been  held  that  where  the  date  of  acknowl- 


'  Ruslin  V.  Shield,  11  Ga.  636; 
but  see,  Howe  v.  Howe,  99  Mass. 
88. 

'Himes  v.  Keighblinger,  14  111. 
469;  Burkholder  v.  Cased,  47  Ind. 
418;  Kille  v.  Eye,  79  Pa.  St.  15; 
Jackson  r.  Perkins,  2  Wend.  308; 
Lawrence  v.  Farley,  24  Hun 
(X.  Y.),  293;  Connard  v.  Colgan,  55 
Iowa,  5.38;  Moore  v.  Giles,  49 
Conn.  570. 

» Kille  V.  Eye,  79  Pa.  St.  15;  Alex- 
ander V.  Alexander,  71  Ala.  295; 
but  Boc,  Boyd  v,  Slayback,  63  Cal. 
493. 

*  Metcalfe  r.  Brandon,  60  Miss. 
(W5;  Miuit..'rson  v.  Cheek,  23  111.  73. 
While  the  recording  of  a  deed  for 
land  may  afford  prima  facie  evi- 
dence of  itH  delivery  and  accept- 
ance, thi«  niuflt  l»e  nndernto(Ml  a8 
ap(>lying  to  a  deed  Kimply  eonvey- 
ing  the  laml,  and  not  i\h  a|iplyiiig 
t<i  a  de<il  whi'li  ttii|M*H4-H  an  olihga- 
tion  \x\fo\\  the  grantee    to   ashuinu 


and  pay  a  pre-existing  incum- 
brance on  the  property.  Thomp- 
son V.  Dearborn,  107  111.  87. 

'Ken-  V.  Birnie,  25  Ark.  225; 
Dale  V.  Lincohi,  62  111.  22;  Palmer 
V.  Palmer,  62  Iowa,  470. 

« Gould  V.  Day,  4  Otto  (U.  S.),  405. 
Tlius  where  a  deed  had  been  exe- 
cuted and  recorded  without  the 
knt)wlodge  of  the  grantee,  who 
subseiiuently  executed  a  convey- 
ance to  a  tliird  party,  tliis  recog- 
nition Ijy  both  parties  of  the  trans- 
fer of  the  title  was  held  to  be  suf- 
ficient evidence  that  at  the  time  a 
delivery  of  the  deed  had  been 
made.     Ibid. 

'  Deininger  v.  McConnell,  41  111. 
22H;  Treadwell  v,  Reynolds,  47  Cal. 
171;  llannan  r.  Oln-rdorfer,  33 
Grat.  (Va.)497:  Haines  v.  Walker, 
77  Va.  92. 

•Whitman  v.  Ileiinelx-rry,  73  III, 
IW. 


212  ABSTRACTS   OF   TITLE. 

edgmcnt  is  sul>so(jnent  to  llic  date  t)f  tlio  dood,  tliorc  is  no  ])rci 
siimjition  of  dolivoiy  pi'ior  to  the  acknowlcdgincnt.'  The 
Yoliinie  of  autliority,  lunvcvcr,  does  not  sustain  tliis  doctrine, 
and  the  (hite  of  execution,  in  the  absence  of  (>llier  proof  to 
tlie  contraiy,  may  still  be  taken  as  the  true  date  of  delivery,* 
and  not  the  date  of  acknowledgment,  which,  as  a  matter  of 
convenience,  may  well  have  been  made  afterward."  So 
where  a  g-rantee  dies  between  the  dates  of  the  deed  and  its 
acknowledgment,  it  Avill  be  presumed  that  the  deed  had 
been  delivered  in  his  lifetime."  As  a  conveyance  derives  its 
effect  and  operation  only  from  deliver}'-,  the  question  of 
time  will  not  infrequently  form  an  important  element  in  the 
methods  employed  by  counsel  in  framing  his  oi)ini()n  of  the 
title,  as  well  as  in  determining  the  respective  rights  and 
relations  of  parties  who  hold  under  the  deeds,  or  who  show 
conflicting  or  adverse  claims.  The  abstract  will  usually 
shed  but  little  light  on  itself,  and  under  ordinary  circum- 
stances it  will  be  safe  to  proceed  on  the  assum])tion  that 
the  date  of  execution  is  also  the  time  at  which  the  title  to 
the  property  conveyed  passed  to  the  grantee.^  In  case  of  a 
forged  instrument,  there  is  no  ])resumption  of  delivery 
either  at  its  date,  or  at  any  other  time." 

§  26.  Ancient  Deeds.  Deeds  more  than  thirty  years  old 
are  called  ancient  deeds,  and  are  exempt  from  the  usual  tests 
a])plied  to  conveyances,  being  admitted  in  evidence  Avithout 
proof  of  execution,'  and  where  a  deed  would  be  evidence  as 

'  Fontaine  V.  Savings  Institution,  ^Breckenridge  r.  Todd.  10  Am. 

57  ilo.  553;  Bi'olasky  v.  Fm-ey,  12  Dec.  88.     Tin- isaine  doctrine  is  rec- 

Pliil.   (Pa.)  428.      Washburn  also  ognized  and  sanctioned  by  the  Eng- 

announces    the    same     principle.  lish  decisions  under  their  statutes 

Sec  3  Wash.  Eeal  Prop.   (4th  Ed.)  of  enrolhnents.      See    also    Shep. 

286.  Touch.  72. 

-Ilardm    v.   Crate,   78  lU.   553;  « Remington  Pap.  Co. v.  O'Dough- 

Ellsworth  V.  Cent.  R.  R. ,  84  N.  J.  L.  erty ,  81  N.  Y.  474. 

93;  Billings  v.  Stark,  15  Fla.  297.  '  Whitman  v.  Henelieriy,  73  111. 

3  People  V.  Snyder,  41  N.  Y.  402;  109;  Gardner  v.   Granniss,  57  Ga. 

Hardin  v.  Osl);)rne,  60  111.  93,  and  539. 
see  Fisher  v.  Butcher,  19  Ohio,  406. 

■»  Eaton  V.  Trowbridge,  38  Mich. 
454. 


FOKMAL  PAKTS  OF  DEKDS.  213 

an  ancient  deed  without  pi-oof  of  its  execution,  the  power 
under  which  it  purports  to  have  been  executed  will  be  pre- 
sumed.' This  rule  is  not  uniform,  however,  and  it  has  been 
held  that  a  conveyance,  though  over  thirty  yeai*s  old,  can 
not  be  admitted  as  an  ancient  deed  when  purporting  to  be 
executed  by  one  actiug  as  administrator  in  the  absence  of 
proof  of  his  authority  to  make  the  deed.  And  when  such 
authority  is  conferred  by  an  order  or  decree  of  the  court,  the 
jurisdiction  of  the  latter  to  grant  the  order  or  decree  must  be 
shown  on  the  face  of  the  proceedings.'  Some  discretion  may 
be  employed  by  the  examiner  in  regard  to  conveyances  of  long 
standing,  and  under  which  the  rights  of  the  })arties  ha\  e  be- 
come fixed  bv  continued  possession  and  enjoyment.  It  will 
not  be  necessary,  in  many  cases,  to  notice  defects  that  should 
invariably  ap})ear  in  the  case  of  later  deeds,  particulai'ly 
when  rendered  of  no  effect  by  cui-ative  legislative  enactments. 
§  27.  Stamps,  By  act  of  Congress,'  July  1,  1802,  and 
acts  amendatory  thereto,"  an  ad  valorem  stamp  duty  was  im- 
posed on  conveyances  and  contracts  relating  to  real  ])roprrty. 
The  act  provided  that  the  stamps  sliould  be  affixed  to  the 
instrument  and  propei-ly  canci.'led,'  and  in  default  thei-rof 
the  instrument  to  be  invalid.  The  act  became  in  force  on  and 
after  Oct.  1,  lSn2,  and  Cijntinued  for  a  i)eriod  of  ten  years. 
On  all  instruments  executed  during  this  j)eriod,  the  exam- 
iner will  observe  wjiether  the  record  purjiorts  to  show  a 
stamp.  If  so,  it  should  b(»  shown  briefly,  as  "  V .  S.  Int.  IJcv. 
Stamps  f<jr  sL50  allixed."  or  if  none,  "  No  Int.  liev.  Stamp 
shown  of  record."  The  ])resoncc  or  absence  of  the  stanjj), 
however,  mattn^s  little  so  far  as  the  validity  of  the  convcv- 
ance  is  concerned,  for  it  is  not  in  the  constitutional  j)owc'r  (tf 
(.'ongress  to  prescribe  for  the  States  a  rule  for  the  transfer 
of  pro)H»rty  within  th<Mii,*  nor  t(»  provide  rides  of  evidence 
for  the  Si;it.-  .(,111  ts,' .111.1  .  <.ii\.  yauccs  are  not  rendered  void 

'.J..hn>«.ii  r.  .^ii.iu  ,   ii   i.\.  i.1.          •  18  U.  S.  Stat.  293. 

•K.ll  r.  Y.iuiif;.  «:i  111.  HjO.  •  .M.K.rf  »•.  M.M.n'.  Al  N.  Y.   Jn7. 

M'J  U.  H.  Sut.   175.  '  MiiilMnir  v.  (JmI.-h,  W\  N.  Y.  JO; 

M3  U.  S.  HUit.  ijyy.  CraiK  i.  iJiiiiock,   17  111.  'J08. 


214  ABSTRACTS    OF   TITLE. 

by  the  omission  of  the  stamps,'  nor  for  neglect  to  cancel 
same  if  alKxed.'  The  act,  so  far  as  it  })rescribes  a  rule  of 
evidence,  is  ojierative  only  in  the  Federal  courts,  and  has  no 
application  to  the  courts  of  the  States.* 


'  Janvrin  v.  Fogg,  49  N.  H.  340 
Kliionstroin  v.  Cone,  26  Wis.  103 
Brown  V.  Thompson,  59  Me.  372 
Slorris  V.   MfMorris,  44  Miss.  441 


Iowa,  95;  D'Armond  v.  Dubose,  22 
La.  Ann.  131. 

nVilson  V.  McKenna,  52  III.  43; 
People  V.  Gates,  43  N.  Y.  40;  Sani- 


Lathani  r.  Smith,  45  111.  29.  mons  u.    Halloway,  21   Mich.    102; 

=*  Agricultui-al  Assoc,  v.  Neill,  31      Woodward  v.  Roberts,  58  N.  H.  503. 


CHAPTER  XI Y. 

ERRORS,   OMISSIONS    AND  DEFECTS. 

g  1.  Error  generally.  §  7.  Misdfscriptinn— Omission. 

2.  Defect  of  parties— Gr:intor,  8.  Misdescription— (Quantity. 

3.  Defect   of  parties— Grantee.  9.  Defective  covenants. 

4.  Disparity  of  dates.  10.  Defective  acknowledgment. 

5.  Technical  phrases.  11.  Continued. 
G.  Misdescription — Uncer-  12.  Repugnancy. 

tainty. 

§  1.  Error  Genonilly.  Conveyancers,  like  otlier  mor- 
tals, have  no  iniinunity  from  error.  Xot  only  do  the  best 
skilled  often  forget,  but  ignorance  and  carelessness,  assum- 
ing the  office  and  functions  of  conveyancers,  augment  their 
mistakes  a  thousand  fold.  Su})eradded  to  these,  are  the 
errors,  blunders  and  omissions  arising  during  the  transcril)- 
ing  from  the  original  documents  to  the  record,  the  whole 
forming  a  source  of  constant  watchfulness  on  the  ])art  of 
examiner  and  counsel.  The  errors  most  common  are  found 
in  disparity  of  dates;  the  acknowledgment  freijuently  ante- 
dating the  execution,  and  occasionally  the  date  of  registra- 
ti<m  having  priority  of  both,  Discre])ancies  in  names;  a 
jKirticular  name  a})i)earing  in  the  premises,  another  in  tlie 
execution  and  ofttimes  yet  another  in  the  ackiiow  Icdg- 
mont;  manifest  misdcscriptirms  of  the  projHM'ty  as  compMi-cd 
with  preceding  convcy;nu'(.'S,  souicliines  ghiring  aM«l  obtru- 
sive and  again  retiring  and  only  di.scerniblo  by  close  and 
cono'ntnited  aitcntion.  (imissions  arc;  more  freipieiit  and 
]>alpabh;.  Tliey  are  usually  the  result  of  negligence  on  the 
part  of  the  conveyancer  or  recorder,  and  call  for  a  corre- 
sponding degree  of  care  on  the  |)art  of  th«5  examiner. 
Where  j)rinte<l  forms  an?  used  in  conveyancing,  blanks  are 
frecjuentiy    impro|M'rly    lilled,    or   (piite   ius   often    hit    un 


21G  ADSTKACTS    OF   TITLE. 

touclicd.  This  will  be  found  to  be  the  case  in  dates,  ]ier- 
sonal  pronouns,  references  to  the  ])arties,  venue  and  the 
like.  Misdescrijitions  of  the  ])i'operty  often  occur  where 
the  conveyancer  copies  the  description  from  some  older 
deed  in  Avhich  figures,  initials,  words,  a  course  or  distance, 
or  even  a  "whole  line  "will  be  omitted  and  jniss  unnoticed 
until  detected  by  the  examiner.  These  errors  api)caring  on 
the  face  of  the  record,  it  is  the  duty  of  the  examiner  to 
detect  and  carefully  note  in  such  a  manner  that  the  atten- 
tion of  counsel  will  be  drawn  to  thein  on  the  ])crusal  of  the 
abstract. 

§  2.  Defect  of  Parties — Grantor.  A  discrepancy  will 
frequently  be  noticed  between  the  names  of  the  grantors  in 
the  body  of  the  deed,  -written  usually  by  the  conveyancer, 
and  those  in  the  execution,  written  by  the  parties  personally. 
In  the  case,  where  the  variation  is  slight,  the  dilference  may 
bo  shown  by  writing  the  name  as  found  in  the  signature,  in 
the  caption,  and  adding  a  statement  at  the  conclusion  of  the 
synopsis  substantially  as  follows  : 

In  l)ody  of  deed  {and  certificate  of  achiowledgment)  said 
grantor  s  name  is  written  ^'■George  A.  Smith." 

The  error  being  indicated  in  both  names  by  an  underscore. 

Discrepancies  similar  to  the  one  just  noticed  are  frequent, 
but  fortunately  comparatively  harmless.  The  la^v  knows 
but  one  Christian  name,  and  the  omission  or  insertion  of 
a  middle  name  is  immaterial,'  and  usuall}^  if  there  is  a  vari- 
ance betw^een  the  names  of  the  grantors  as  they  appear  in  the 
body  of  the  deed  and  in  the  siy-natures,  the  identity  of  the 
persons  will  be  presumed  until  rebutted,  where  the  deed  has 
been  properly  acknowledged.'  In  case  of  a  radical  differ- 
ence in  the  orthography  or  sound,  the  names  in  the  premises 
should  form  the  caption  and  the  execution  should  be  set 

'James  v.   Stiles,   14    Pet.  322;  Franklin  u.  Talmadge,  5  Johns.  (N. 

Dunn  V.   Gaines,  1   McLean,  321;  Y.)84. 

Erskine  v.  Davis,  25  III.  251 ;  Sco-  ^  Lyon  v.  Kain,  36  111.  3G2. 

field  V.    Jennings,    68    Ind.  232; 


EKROKS,  OMISSIONS   AND    DEFECTS.  217 

forth  fully.  It  sometimes  happens  that,  through  inad- 
vertence or  mistake,  the  name  of  the  grantor  has  been 
entirely  omitted  in  the  body  of  the  deed,  and  while  it 
has  b>>?n  held  that  one  who  signs,  seals  and  ilelivei'sa  deed  is 
bound  by  such  acts  as  grantor,  although  not  named  as  such 
there'n,'  the  current  of  later  decisions  would  indicate  that 
siuh  a  de^.l  is  ineffectual  to  convey  any  interest  or  pass 
title.'  Where  only  a  portion  of  t\\d  grantors  named  in  a 
conveyance  sign  and  acl'nowledge  same,  the  authorities  are 
somewhat  divided  as  to  the  effect  of  the  deed;  some  hold 
that  where  the  deed  shows  that  it  was  intended  to  be  jointly 
executed  by  all  the  jiarties,  an  execution  and  delivery  by  a 
portion  only  is  incomplete  and  does  not  bind  them  ; '  a  ma  jor- 
ity  of  tlie  cases,  however,  favor  the  contrary  doctrine  and 
seem  to  sustain  the  ])rinciple,  that  the  parties  executing  will 
be  bound  thereby,  and  the  deed  be  sutlicient  to  pass  tlieir 
interests.*  If  the  true  owner  of  land  conveys  by  any  name, 
the  conveyance,  as  between  him  and  his  grantee,  will  trans- 
fer title,  and  in  all  cases  evidence  a/iu/tde  the  instrument  is 
admissilde  t<^  identify  the  actual  grantor.' 

g  3.  Defect  of  Parties — Grantee.  Defects,  of  the  kind 
wliich  fyrnii  t!ij  caption  to  this  section,  arise  mainly  from  im- 
]>erfect  designation,  misnomer  and  omission,  and  from  tln'ir 
nature  are  not  susceptible  of  easy  detection.  In  case  of  mis- 
nomer they  will  frecpiently  appear  only  inferentially  by  tom- 
j).iris')n  witii  (jther  instruments,  but  when  deteet»'(l  attention 
should  be  drawn  tothem.  AN'hereadeed  is  toAVilliam  llar- 
m<m  followe<l  by  a  conveyance  from  AVilliam  J.  Ilerniann, 
tliere  is  an  apparent  break  in  the  chain  and  tiie  exajiiimr 

'  Elliott  r,  SlceptT,   2   N.  H.  525;  « Story     Part.,    g     110;    ParMm-s 

TJiomiJHon  v.  Lovrcin,  H2  Pa.   St.  Part..  ^ '.W.). 

4152.  *A«   wli<-r<<  n  (IismI  |iiir|Mirt'^  to  Ih> 

Mlnrriiwin  v.  HiinnioiiH,  55  Ala.  frnin  ,/mAn  U.  Mliuk,  ami  is  hi;;iic4| 

510;  I^iu;;liliii  t'.  Kn-ain,  11  W.  Va.  ".I.  O.   HIack,"    pand  «'viili-Mrt<   in 

»22;  Pi'alKHly  i'.  Hi-witt.  52  .M<-.  IW;  mlmiKsil.l..  to  hIiuw  that  Juiiua  I). 

H.ink  r.   Uicc,  4  flow.  225.  HIai-k  wax  tin-  iilt-iilical  |Mrhiiii  who 

'Arthur    V.    Amh-nxju,    U    S.    C.  in  fa't  ••xi'<-ut('<|  the  iIihmI.     Wjiko- 

2:iL  li<  l<l  f.  Prnuii,  'M  Minn.  Ml. 


218  AI5STUACTS    OF    TTTT-E, 

slionUl  call  attention  to  same  by  a  row  of  short  marks  under 
each  name,  thus:  Hermann.  When  an  unilerstanding  also 
exists  between  examiner  and  counsel,  this  method  uf  notation 
will  also  serve  to  signify  that  this  is  the  identical  manner  in 
which  they  appear  upon  the  records,  and  is  not  due  to  any 
negligence  of  transcription  on  the  i)art  of  the  examiner. 
Defects  similar  to  that  now  under  consideration,  are  latent 
defects  and  susceptible  of  parol  explanation,  and  where  no 
new  deeds  are  made,  affidavits  showing  the  identity  of  the 
parties  should  be  required  by  counsel.  In  construing  deeds 
of  this  character,  i.  ^.,  where  a  party  takes  under  a  misno- 
mer, but  conveys  by  his  proper  name,  courts  are  ever  inclined 
to  grant  the  widest  leniency,  for,  in  tlie  great  influx  of  foreign 
speaking  population  which  the  United  States  is  constantly  re- 
ceiving, mistakes  must  occur  in  adapting  to  the  English  forms 
of  pronunciation,  foreign  names  and  the  spelling  of  same; 
hence  it  has  been  held  that  a  deed  to  "Mitchell  Allen,"  followed 
by  a  deed  from  "  Michael  Allaine,"  is  not  a  fatal  variance, 
and  will  be  presumed  to  be  the  same.*  Very  frequently  the 
negligence  of  the  recorder  will  produce  disparities  of  this 
kind,  as  Avhere  the  records  showed  a  deed  to  "  Electa  "Wilds" 
and  a  subsequent  deed  of  the  same  property  from  "  Electa 
"Wilder,"  "  "Wilds  "  being,  however,  the  true  name.  In  every 
case  similar  to  this  the  attornc}'  examiniiig  the  abstract 
should,  by  proper  inquiries,  ascertain  the  facts,  and  when  the 
defect  is  wholly  due  to  errors  in  transcribing,  a  re-record 
should  be  had.  Ordinarily  defects  in  the  record  or  paper 
title  may  be  cured  or  removed  by  parol  evidence."  Grantees 
capable  of  identification,  though  not  fully  named,  will  never- 
theless take  title,  as  a  deed  to  John  Smith  and  the  "  other 
heirs  at  law  "  of  one  deceased,  would  convey  an  estate  to 
all  the  heirs  of  such  deceased  person  as  fully  as  if  each  were 
specifically  named;'  yet  where  one  of  such  "heirs"  has 
attempted  to  assert  title,  the  abstract  should  show  by  legal 

'  Clnnicjuy  v.  Catholic  Bishop,  41       56;  Shriver  v.  Shrivcr,  86  N.  Y.  575. 
Ill  148.  3 Cook  V.  Sinnamon,  47  111.  214; 

'Hellreigil  v.  Manning,  97  N.  Y.       Low  v.  Graff,  80  111.  360. 


EKKORS,  OMISSIONS   AND    DEFECTS.  210 

evidence  his  right  so  to  do;  a  conveyance  to  snch  person 
specified,  however,  and  the  heirs  of  a  Uvi/i(/\)Qrsoi\  woukl  be 
void  as  to  all  except  the  person  spcciticall}''  named.'  It 
seems  almost  unnecessary  to  remark  that  a  deed  without  tlie 
name  of  a  grantee  is  absolutely  void.' 

§  4.  Disparity  of  Dates.  A  frequent  defect  in  deeds  is 
a  disparity  of  dates,  that  is,  the  acknowledgment  antecUiting 
the  execution,  etc.  This  is  a  minor  defect,  however,  that 
does  not  go  to  the  foundation  of  the  deed,  for  the  date  may 
be  disregarded  in  a  i)roi)er  case  and  the  deed  will  yet  stand. 

In  point  of  form  the  date  is  not  essential,  and  is  valuable 
chiefly  as  an  evidence  of  time  in  passing  on  the  rights  of 
parties,  or  fixing  the  status  of  the  conveyance  in  resj)ect  to 
other  deeds  of  transfers  of  title,  yet  for  the  purpose  of 
oi)erative  conveyance,  the  time  of  delivery  is  the  true  date, 
and  tliis  may  always  be  shown  by  parol.  Attention  is  called 
to  defects  or  disparities  of  dates  by  a  broad  dash  or  under- 
score, as  ''Dated  June  — 1SS3,"  or  "Dated  June  J3,  1883." 
In  the  latter  case,  both  dates,  or  as  many  as  appear  irrecon- 
cilable, must  be  treated  in  tliis  manner,  and  the  disparity 
will  thus  be  brouglit  prominently  before  the  notice  of  the 
person  perusing  the  abstract. 

§  5.  Teclinieal  Phrases.  Whenever  it  is  ap])aront  that  a 
grantor  has  used  a  tccimical  woi-d  to  express  an  iiK-a  differ- 
ent from  its  technical  signification,  a  court  will  (.-onstrue  it 
according  to  the  manifest  intention  of  the  gr.intoi','  but  in 
ascertaining  such  intent,  where  the  words  employed  are  net 
technical,  they  must  be  taken  in  their  usual  acceptati<jn.*  In 
conveyancing  a  larirr  number  of  j)]irasrs  have  obtained  cur- 
rency, which,  practically,  neither  adil  to  nor  detract  from 

'H.ill   V.   I>v,n.-ir(i,    1   Pi.k.   27;  8:M.     It  lijw  })oon  licl.l.   ho\vcv«'r. 

WiijHlim-  r.    WiiiMlow,    .W   Ind.   H;  that  a  i|u:iliti('atiiiii  of  tli*- i|iiiiiitit.v 

but  («•<.•  (jririuti  v.  Orraiid,  2  IIi'i«k.  of  u  lot  of  land  wild  jlh  "  iiioru  <ir 

(Ti-nn.)  29M.  1<-»«h"  will  rovc-r  any  lifdciincy  not 

»  WhiUikiT  V.  Mill<T.  KJ  III.  '.if*\.  tn>  ^:;r^»<n  iin  to  ju«tify  Uio  HUsiiiejon 

*C.  I'.  It.  R  Co.  V.  lt<>al,    17  Cal.  of     wilftd    «Kx'i-|.tion     or    inistakp 

VA.  uiiiouiitiiiK'    Ut    fraud:     \N  \  ll\      r. 

*  iiruditlLaw  v.  liruditlmw,  01  Mu.  Lia/.iin,  (i'j  (j;i.  500. 


220  ABSTUACTS    OF   TITLE. 

the  force  of  that  wliicli  precedes  or  follows,  hut  are  retained 
and  useil  in  much  the  same  manner  as  numerous  other  inci- 
dents of  modern  deeds,  rather  for  their  supposititious  eiHcacy 
than  for  any  real  utility.  Of  this  class  is  the  language 
''  more  or  less,"  which  is  extensively  used  in  deeds  and  con- 
tracts for  the  sale  of  land.  This  tenu  uiust  be  understood 
to  a}>ply  only  to  snudl  excesses  or  deficiencies  attributable 
to  the  variation  of  the  instruments  of  sui'veyors,  etc'  In 
like  manner  the  words  ''known  as,"  in  a  d(>scription  in  a 
deed,  is  a  mere  formula  and  has  no  restrictive  effect."  "And 
all  the  buildings  thereon,"  etc.,  have  no  legal  signiiication.' 
So,  also,  many  phrases  in  the  body  of  the  deed  are  without 
force;  as,  the  words  "to  his  and  their  proper  use  and  be- 
hoof," etc.,  following  the  words  of  limitation.  These  words 
have  no  particular  meaning  or  effect  in  determining  either 
the  extent  of  the  interest  conveyed,  or  tlie  nature  and  quality 
of  the  estate  intended  to  be  vested.  In  deeds  of  bargain  and 
sale  they  serve  no  office  whatever.*  Words  and  phrases 
similar  to  the  foregoing,  detract  nothing  from  the  deed  by 
their  omission  and  do  not  call  for  notice,  but  where  technical 
words  of  limitation,  purchase,  inheritance,  etc.,  are  omitted 
in  deeds  i)urporting  to  convey  only  limited  or  special  inter- 
ests or  estates,  it  will  sometimes  become  advisable  to  show 
such  omission,  together  with  such  parts  of  the  habendum  or 
other  operative  portions  of  the  deed  as  will  supply  the  miss- 
ing words,  or  indicate  the  undefined  intent  of  the  grantor. 
The  intent,  when  ai)parent,  and  not  repugnant  to  any  rule 
(3f  law,  will  always  control  technical  terms;  for  the  intent 
and  not  the  words,  is  the  essence  of  ever}^  agreement.' 

§  6.  Misdescription  —  Uncertainty.  Ambiguous  and 
uncertain  descriptions,  particularly  when  composed  of  calls 
for  courses  and  distances,  are  among  the  most  common 
defects  found  in  modern  deeds.  They  arise  frequently  from 
the  carelessness  and  inattention   of  the   conveyancer,  but 

'Benson  v.  Humphreys,  12  Re-  'Crosby  r.  Parker,  4  Mass.  110. 

porter,  591.  ♦Jackson  v.  Gary,  16  Jolnis.  302; 

■^  Kneeland  v.  \sld  Valkenburgh,  Brain  v.  Renshaw,  12  Reporter,  (523. 
46  Wis.  434.  'Calliiis  v.   LaveUe,   44  Vt.  230. 


ERRORS,  OMISSIONS    AND    DEFECTS.  2"21 

more  often  from  a  false  cconomv  in  the  survey,  the  (Irauu'hts- 
man  computing  his  distance  and  framing  his  courses  l>y 
reference  to  some  former  map  or  survey,  and  not  by  actu- 
ally running  them  in  the  field..  This  very  convenient  but 
equally  })ernicious  system  prevails  to  an  alarming  extent 
in  modern  conveyancing,  and  when  attempted  by  incom- 
|>etent  bands,  is  usually  followetl  by  uncertainty  if  not  fatal 
error.  In  all  cases  of  description  by  metes  and  bounds,  the 
description  in  the  deed  under  examination  should  l)e  com- 
pared with  lx)th  former  and  subsequent  ones  as  given  in 
other  conveyances,  and  with  the  true  description  that  foi'ms 
the  subject  of  the  examination.  This  task  should  be  j^er- 
formed  both  by  the  examiner  and  by  counsel,  and  is  a 
precaution  never  to  be  omitted.  /An  imperfect  or  uncertain  de- 
scription does  not  of  itself  vitiate  the  conveyance,  providcxl 
it  affords  definite  means  by  whieli  the  identity  of  the  prem- 
ises may  be  established; /as  by  reference  to  certain  known 
objects  or  things,'  or  to  perfect  descriptions  in  other  deeds." 
In  the  absence  of  references,  or  otlier  identifying  circum- 
stances, if  the  land  be  so  inaccuratel>'  described  as  to  render 
its  identity  wholly  uncertain,  the  grant  is  void,'  and  the 
same  rule  a)>]ilies  with  equal  force  to  exceptions  or  reserva- 
tions from  the  grant,  which,  though  the  grant  may  prevail, 
the  exception  may  be  void  for  uncertainty.* 

Imi)erfect  desci'i|)tions  creating  uncertainty  by  reason  of 
vaguene.ss  are  common,  particularly  in  case  of  tax  deeds;  as. 
''  2o0  acs.  in  Sec.  2,"  etc.;  no  particular  portion  of  the  sectio!i 
being  designated.  J  A.  deed  is  not  necessarily  void  for  uncer- 
tainty where  land  is  described  by  a  genenil  namt^  or  desig- 
nation, wliich  by  extrinsic  evi<l(*nce  can  be  fully  i<lentiHed,* 
and,  a.s  a  geneiid  rul<\  a  dred  will  only  be  lu'ld  voitl  for  un- 
certainty, where,  after  resort  to  or.il  inocif,  it  s'till  nMnains  a 
matter  of  c«>njectui*(i  what  was  intended  by  the  instrument,*/ 

'Co.ntHM.Taft,  12  WiH.  388;  .Smith  Di.kiriH  r.    Djirm-**.   70   N.    C.  IIK); 

V.  rniwfMr.l,  HI  III.  2%.  Kolliiir.  I'i.k.-(t.  2  Hill  (N.  Y.).  ft.V.>. 

»  HiiNw-ll  V.  Hr<»wii.  11  111.  IHJ.  ♦  'rii.iyt-r  v.  Tony.  :J7  .\.  .1.  L.  311). 

'(•jilford  V.  Alc-x.'in<h'r.  07  III.  ."iHI;  »  Tinkir  r.  Fiilil.  ."il  Mimm.  101. 

C';iiii|tU>ll  V.  JolitiHiMi,   44  Mo.  317;  *  Siiiitli  r.  ('riiwfiini,  N|  111.  VlMl. 


222  ABSTRACTS    OF   TITLE. 

It  will  1)0  undorstood,  however,  tliat  this  alludes  only  to 
latent  anibif^uity.' 

§  7.  Misdescription — Omission.  One  of  the  principal 
elements  of  uncertainty  in  descriptions  is  produced  by  the 
omissions  of  essential  particulars,  though  the  effect  of  such 
omissions  is  not  the  same  in  all  the  States.  The  name  of 
the  county  and  State  in  which  the  land  is  situate  usually 
precedes,  and  sometimes  follows  the  particular  description. 
Its  insertion  tends  to  greater  certaint}'',  yet  the  entire  omis- 
sion of  this  particular  is  of  minor  consequence,  providing 
the  section,  toAvn  and  range  be  correctly  stated,  as  there  can 
be  but  one  locality  answering  that  description,"  but  a  descrip- 
tion giving  simply  the  subdivision  of  the  section,  and  omit- 
ting the  section,  town  and  range,  w^ould  be  so  defective  that 
it  w^ould  convey  nothing,"  even  though  the  county  and  State 
were  given.*  A  material  omission  will  not  usually  invali- 
date an  instrument,  w^here  other  adequate  elements  of  iden- 
tification exist.* 

§  8.  Misdescription — Quantity.  A  recital,  in  a  convey- 
ance of  land,  that  the  tract  contains  a  certain  number  of 
acres,  will  always,  unless  there  is  an  express  covenant  as  to 
quantity,  be  regarded  as  a  part  of  the  description  merely, 
and  if  inconsistent  with  the  calls  of  the  deed,  will  be  rejected 
as  surplusage.'  Such  a  recital  aids,  but  does  not  control,  the 
description  of  the  grant. 

§  9.  Defective  Covenants.  Defective  covenants  form 
a  fruitful  source  of  litigation,  as  w^ell  as  of  vexation  and 
annoyance,  and  the  examiner  should  devote  especial  care  in 
abstracting  this  portion  of  the  deed,  to  the  end  that  through 

'Bowers  v.   Andrews,   52  Miss.  ■*  Such  a  deed,  though  inoperative 

596.  as  a  conveyance,  would  7-aise  an 

*  Howe  V.  "Williams,  50  Mo.  252;  equity  in  the  land  sought  to  be 

Beal  V.  Elan,  33  Iowa,  318;  Slater  conveyed  in  favor  of  the  gi-antee* 

V.  Breese,  36  Mich.  77;  Sickmon  v.  Lloyd  v.  Bunce,  41  Iowa,  660. 

Wood,  69  lU.  329;  compare  Lloyd  '  Slater  v.  Breese,  36  Mich.  77. 

r.  Bimce,  41  Iowa,  660.  <>  Fuller  v.  Carr,  33   N.  J.  L.  157; 

^  ToUenson  v.  Gunderson,  1  Wis.  Campbell  v.  Johnson,  44  Mo.  247; 

113:  Fuller  v.  Fellows,  30  Ark.  657;  UfTord  v.  Wilkins,  33  Iowa,  110. 
but  compare  Butler  v.  Davis.  5  Neb. 
521. 


ERRORS,  OMISSIONS    AND    DEFECTS.  223 

his  negligence  the  intending  purchaser  may  not  also  bu}'  a 
lawsuit.  The  majority  of  these  errors  arise  through  the 
stupidity  or  carelessness  of  incompetent  drauglitsmen  in  the 
use  of  printed  forms,  and  unless  chisely  scrutinizeil  will  some- 
times escape  the  eye  of  an  expert  examiner.  A  familiar 
example — one  ojcarring  more  frequently,  perhaps,  tlian  any 
other — is  in  thecaai'.nencjniint  of  the  collective  covenant 
clause,  which  reads :  "And  the  said  parties  of  the  first  part 
for — ."  Here  follows,  in  the  printed  blank,  a  space  intended 
to  be  filled  by  the  conveyancer,  with  a  personal  i)ronoun 
descriptive  of  the  granting  party  or  parties.  The  convey- 
ancer neglects  to  fill  this  space;  and  the  clause  continues, 
"their  heirs,''  etc.,,  "do  covenant,"  etc.  Here  there  is  cer- 
tainly no  direct  covenant  on  the  part  of  the  granting-  par- 
ties, and  in  a  similar  case  in  Illinois,  it  was  held  that  the 
legal  effect  of  a  covenant  of  this  charactor  is  not  that  the 
grantors  will  d^fen.l  the  title,  but  that  the  same  shall  be 
defended  by  their  heirs,  etc.,  that  it  does  not  give  a  right  of 
action  against  grantors  on  the  loss  of  the  title,,  but  provides 
a  remedy  against  their  legal  and  personal  representatives; 
that  it  exempts  the  grantors  from  personal  liability,  but 
binds  their  descendants  in  respect  of  the  estate  that  may  be 
cast  upon  them;  that  it  is  not  like  a  covenant  that  a  person 
who  is  not  a  party  to  the  deed  shall  warrant  and  defend 
the  title,  for  in  such  case,  upon  the  eviction  of  the  grantee, 
and  the  failure  of  such  third  person  to  comply  with  the 
terms  of  the  covenant,  an  action  might  be  inaiiitaincd 
against  the  grantor,  on  the  familiar  jirinciplc  that  what  a 
party  undi'i'takcs,  shall  l)e  pci-jormcd  by  amithcr,  he  mnst 
him.self  perforin  on  the  (Iffauit  of  that  uthii'.  II. rr,  tlu^ 
covj-nant  is  that  the  act  shall  lu"  pcrronncd  by  jtaitics  who 
can  have  no  legal  (.'xistence  dnring  the  life  (»f  the  grantoi-s, 
and  until  their  decease  there  is  no  jM-rson  Ii\  ing  who  can 
be    called    ui>(»n    to    avouch    the    title'      A     covfiiant    bv 

'  Rufnor     v.   Mc-Coiiiicl,     11     III.  luM.ks  of  "  inaclical    funns."    .Si'o 

16H;  Traynor    v.    riiliiH'r.     HO    III.  "  New  WiwoiiHin  I'unu  liuok,"  p. 

477.     TIk!  error  alxjvf  iiiili<;itiil  jh  \)'2,  furiu  No.  'i, 
common,   uud    cun    be    fuuiid  in 


224  ADSTRACTS    OF    TITLE. 

^Tiintdrs — "for  them — heirs,"  etc.— lias  l)ecn  construed, 
''themselves,  their  heirs,"  etc.,  and  held  to  bo  tlie  covenant 
of  •^•rantors.'  The  neglect  to  insert  "  their  heirs,"  etc., 
after  the  allusion  to  the  grantors,  is  only  a  minor  defect, 
and,  while  it  calls  for  notice,  is  attended  with  no  evil  con- 
sequences. The  legal  effect  of  the  covenant  would  be  the 
same  if  all  reference  to  the  heirs,  executors  and  administra- 
tors were  omitted,"  and  this  apjilies  as  well  to  grantees  as 
to  grantors. 

§  10.  Defective  Aclviiowledginont.  The  ofTice  of  the 
acknowledgment  is  to  authenticate  the  deed,  but  to  be 
effective  for  this  purpose,  it  must  conform  to,  or  substan- 
tially follow,  the  directions  of  the  statute,  both  as  to  the 
certifying  officer  and  the  form  and  substance  of  the  certifi- 
cate. The  certificate,  however,  is  no  ])art  of  the  convey- 
ance, but  only  evidence  of  its  execution,  and,  like  all  other 
evidence,  is  reasonably  considered  and  construed.'  A  sub- 
stantial compliance  with  the  statute  ]irescribing  its  form 
and  requisites  is  all  that  is  required,*  and  minor  defects  not 
going  to  the  essence  of  the  acknowledgment  may  be  dis- 
regarded. Clerical  errors  are  common,  and  arise  mainly  in 
the  use  of  printed  forms  where  blanks  are  improperly  filled 
or  passed  over  without  filling.  Courts  are  always  inclined 
to  construe  such  defects  liberally,*  and  only  purchasers  for 
value  can  take  advantage  of  a  defective  acknowledgment." 
"Where  a  certificate  stated  that  "Personally  appeared  before 

me  P.  II.  and  E.  H.,  his  wife,  who ])ersonally  known 

to  me,"  etc.,  omitting  "  are  "  after  "  who,"  it  was  held  that 
such  omission  did  not  impair  the  deed,  as  "  who  "  might  be 
disregarded  as  su])erfluous,  and  the  certificate  \vould  then 
be  correct.'     So  where  the  word  "  appeared "  was  omitted 

'  Baker  v.  Hunt,  40  111.  264.  '  Scharfenburg  v.  Bishop,  35  la. 

2  Hall  V.  Bunistead,  20  Pick.  2;      60;  Fisher  v.  Butcher,  19Oliio,406. 
Bell  V.  Bonton,  101  Mass.  506.  '  Mastin  v.  Halley,  61  Mo.  196. 

^  Harrington  i).   Fish,  10  Mich.  ''  Hartshorn  v.   Dawson,   79  III. 

415.  108. 

''Calumet,  etc.,  Co.  i*.  Russell, 
68  111.  420;  Carpenter  v.  Dexter,  8 
Wall.  513. 


ERRORS,  OMISSIONS    AND    DEFECTS.  225 

aft'^r  the  phrase  "before  mo  personally,"  the  omission  was 
held  to  be  a  clerical  error,  and  not  fatal  to  the  validity  of 
the  instrument;'  again,  a  certificate  that  A  "to  me  well 
known,"  etc.,  was  lield  to  be  substantially  in  the  form  pre- 
scribed by  st^atute,  viz.:  that  A  "  knoAvn  to  me  to  be  the 
person  whose  name  is  subscribed  to  the  foregoing  instru- 
ment, acknowledged,"  etc.,'  and  generally  when  the  defect 
can  be  reconciled,  or  does  not  defeat  the  acknowledgment 
by  indefiniteness  or  uncertainty,  it  will  not  invalidate.'  A 
material  omission,  unaided  by  other  circumstances,  will 
vitiate  the  acknowledgment,  as,  where  purporting  to  bo 
made  by Smith,  without  other  designation  of  the  per- 
son ; '  but  it  has  been  held  that  where  the  certificate  omits 
the  name  of  the  grantor,  but  shows  that  the  party  who 
appeared  before  the  officer  was  the  grantor,  and  that  he, 
and  no  one  else  appeared  and  acknowledged,'  or  where  he 
is  referred  to  by  name  in  the  wife's  acknowledoment,  it 
would  be  suilicient.'  In  all  cases,  the  error  or  omission 
should  be  clearly  indicated  by  the  examiner,  and  in  such  a 
manner  that  counsel  can  pass  u]X)n  it  with  relation  to 
the  context,  and  so  much  of  the  certificate  should  be 
presented,  in  all  cases  which  seem  to  require  it,  as  will 
effectuate  this  end.  A  common  defect  will  be  found  in 
a  disi)arity  of  dat«-s,  as  where  the  date  of  the  deed  is  subse- 
quent to  the  date  of  acknowledgment;  yet  this  error,  while 
it  calls  for  notice,  is  of  minor  im])ortance  and  d«>os  not 
constitute  a  valid  objection  to  the  title.' 

§  11.  Befcetivo  AcknowlcMli^mcnt— rontiiiiie*].  A  t(  r- 
tificate  in  which  the  ])ers()n  taking  the  acknouh'dgment 
gives  himself  no  official  designation  or  title  is  fatally  defect- 
ive, for  an  acknowb-dgnuMit  or  jiroof  amounts  to  notliing 
unless  it  be  tidicn  by  an  authorized  ofiieer,  and  wliellier  the 

'  S«^-harft.-nbiir;^   v.    IHsliop,    ;{."»  '  \Vil.  oxoii    r.    0.,lH.in,    77    Mi.. 

Iowa.  m.  621. 

»  Watkiim  v.  Hall.  Tj?  T.-x.  1.  •  .Maf,'n<»SH  v.  ArtinM,  :]1  Ark.  KKl. 

'  0«.l.'n  V.  WuIUth.  12  Kan.  282.  '  UrL-!«ol     v.   Jonlan,    101   Maaa. 

«  Hi.HH  V.  McrulK',  I'i  M.l.  77.  407. 
15 


220  ABSTRACTS    OF    TITLE. 

pci-son  1)0  autliorized  or  not,  is  a  fact  wliicli  should  ai)])ear 
iu  the  certificate  of  the  ofhcer  himself.'  But  when  it  ap- 
))eai's  from  the  ccrtilicate  that  it  was  taken  by  an  author- 
ized olHcer,  it  is  not  necessary,  nor  is  it  custonuiry,  for  him 
to  state  in  so  many  words,  that  he  was  authorized  to  take 
such  proofs.'  The  want  of  a  seal  is  usually  no  defect  Avherc 
the  land  conveyed  is  within  the  certifying  olHcer's  juris- 
diction, yet  it  is  a  general  rule,  that  whenever  a  certifying 
officer  is  required  to  have  a  seal  he  must  authenticate  his 
certificate  untler  his  official  seal,  as  well  as  his  signature, 
and  its  presence  is  usually  made  by  statute  an  indispensable 
requisite  when  the  officer  resides  beyond  the  State.  The 
form  of  the  notary's  seal  is  usually  a  matter  of  minor  im- 
portance. The  recorder  is  not  required  to  make  a  fac 
simile  of  the  impression  of  the  seal  ui)on  his  books,  and 
generally  could  not  if  he  were ;  ordinarily  he  is  permitted 
to  show  it  by  a  scrawl,  the  record  then  disclosing  the  fact  of 
sealing  and  that  the  seal  used  purported  to  be  a  seal  of 
office.  This  is  about  all  that  is  required  and  persons  deal- 
ing upon  the  faith  of  the  record  will  be  protected  by  it.' 
A  certificate  defective  in  venue  is  insufficient  for  failing 
to  show  the  locality  in  which  the  act  is  done,  though 
this  may  be  cured  by  the  certificate  of  conformity,'  or  even 
by  the  seal,^  when  the  county  only  has  been  emitted, 
and  the  officer  has  authority  to  exercise  his  office  in  any 
part  of  the  State;  but  this  omission  has  been  held  in  loAva  to 
be  fatally  defective,  and  the  seal  inefficient  to  cure  the  de- 
fect.* In  a  properly  drawn  certificate,  the  date  as  well  as 
the  place  of  acknowledgment  should  appear,  yet  it  would 
seem  that  the  want  of  a  date  to  a  certificate  otherwise 
good,  will  not  vitiate  it.'     An  acknowledgment  taken  by 

'  Lessee  of  Johnston  v.  Haines,  ^  Hardin  v.  Osborne,  60  111.  93. 

2    Ohio,    55;    Cassell   v.   Cook,  11  ^  CI liniquyt'.  Bishop  of  Chicago, 

Ohio,  610.  41  111.  148. 

•^  Livingstone     v.    McDonald,    9  «  Willard  v.  Cramer,  30  Iowa,  22. 

Ohio,  168.  ■"  Irving  u  Brownell,  11  IU.   402. 

^  Sonfield  v.  Tlioinpson,  42  Ark. 
46. 


ERRORS,  OMISSIONS    AND   DEFECTS. 


OOT 


the  grantee  is  of  no  effect,  though  the  deed  would  still  be 
binding  between  the  parties  and  their  heirs.' 

The  main  defects  of  substance  are  a  failure  to  state  the 
fact  of  acknowledgment,  or  to  fix  the  identity  of  the  par- 
ties.' The  certificate  must  state  the  fact  of  acknowlcdir- 
ment.  It  is  this  which  forever  afterward  binds  the  party, 
even  though  he  may  not  acknowledge  the  instrument  freely 
in  point  of  fact;  yet  if  he  acknowledge  ]n'operly,  he  is 
afterward  estopped  to  deny  his  act  as  against  suljscquent 
innocent  purchasers.  The  officer  is  bound  to  know  and  cer- 
tify the  identity  of  the  pereon  making  the  acknowledgment. 
Such  pei-son  must  be  known  to  him  as  the  person  who  exe- 
cuted the  instrument  and  so  certified,  and  a  certificate  de- 
ficient in  this  respect  is  fatally  defective.'  The  examiner 
will  further  observe,  in  case  of  foreign  acknowledgments, 
that  the  officer's  certificate  conforms  to  local  regulations, 
and  if  not,  that  it  is  accompanied  by  a  certificate  of  magis- 
tracy and  conformity  by  some  competent  officer.  Should 
no  such  certificate  ap]iear,  after  noting  the  defects  or  tliver- 
gence,  the  examiner  will  aild : 

JTo  certificate  of  ma^/istracy  or  conformity  shoicn  ofreconh 

"When  accompanied  by  such  certificate,  its  ]3urport  should 
ai)pear,  thus : 

Certificate  of  mafjintracy  and  conformity  hy  Jno.  Smithy 
Clerk  (f  the  Circuit  Court,  Cook  County,  ///.,'  upiiended. 

In  case  of  foreign  notaries,  etc.,  a  certificate  of  magistracy 
is  usually  required  by  statute,  but  where  the  nectary's  certill- 

'  Ilofruns  V.  Carrutli,  18  Fla.  •'»S7.  etc.     Tho  imi|iialini-<l  nn«l  p<>8itivo 

'  Uryan  V.  Ramirez,  8   Cal.   401;  afTlrination    tliat  the  maKi'<trat<''s 

Pi-ii<II<'tfjn  r.  Butt<»n,  3  Omn.  400;  Bi^riiature  to  tin"  -ackimwIfMltjnioiit 

Short  V.  rorilc*',  28  III.  219.  in  ^'i-nuino,  nwi'Ksjirily   iinplicK,  mi 

» Callaway  i'.    Fiwh,  W   Mo.  420;  tlio    j.art    of    the    cU-rk,     lK)tli    a 

Stnitli  r.  Garrlcn,  28  Wi«.  OH.*).  ki)r»\vlc<l;^e  of  the  handwriting  atxi 

*II«'re,    if  (li-Mired.    si-t   out   any  his  hrlii-f  of  it«  k'<""i>'h«''""'«:  Wi-IIh 

f»ortii»n  rif  tlie  <-<Tti(i<"it«';  ai*   that  t'.  AtLinjiun,  24  Minn.  101. 
the  ufllccr's  Hit^nuture  Sn  genuine, 


'2'2S  A.BSTKACTS    OF   TITLE. 

eate  is  in  conformity  to  local  la\v,  the  certificate  of  magis- 
tracy need  not  be  noticed  in  the  abstract,  its  main  otiice 
being  to  cure  defects  of  form.  A  commissioner  appointed 
by  the  Governor  of  a  Slate  to  talce  acknowledgments  of 
deeds,  etc.,  in  another  State,  is  an  officer  of  the  State  from 
Avhich  he  derives  liis  a}ipointment.  The  courts  of  that  State 
are  bound  to  take  judicial  notice  of  his  acts,  and  these 
require  no  other  authentication  than  his  seal  of  office.'  Ilis 
certificate,  however,  should  be  in  conformity  with  the  laAvs 
of  the  State  from  wliich  he  derives  his  authorit3^' 

A  properly  drawn  notarial  certificate  will  always  show 
the  officer's  jurisdiction,  and  "where  a  defect  of  this  kind 
occurs  it  should  be  shoAvn  by  a  brief  note,  thus : 

Certijicate  of  acknowledgmeiit  hy  '•'■Ilenry  Brown^''  whose 
venue  is, "  State  of  Illinois,  County  of  CoohP  Jurisdiction  of 
ojficer  not  otherwise  shown. 

§  12.  Repugnancy.  "Where  there  is  a  disagreement  or 
inconsistency  between  two  or  more  clauses  of  a  deed,  it  is  a 
general  rule  that  the  earlier  clause  will  prevail  if  the  incon- 
sistency be  not  so  great  as  to  avoid  the  instrument  for 
uncertainty.*  This  rule  is  always  applied  where  an  estate 
is  expressly  granted,  and  which  is  followed  by  a  reservation, 
exception,  or  condition  which  destroys  the  grant.'  In  the 
matter  of  description,  where  there  is  a  clear  repugnance, 
eifect  will  always  be  given  to  that  which  is  most  definite 
and  certain,  and  w^hich  will  carry  out  the  evident  intention 
of  the  parties." 

'Sinith  V.  Van  Gilclcr,   26  Ark.  "Cutler    v.   Tiifts,   3  Pick.    277; 

527.  Pynchon  v.  Sterns,  11  Met.  304. 

2  Brannon  V.  Brannon,  2  Disney  *Wade  v.  Deray,  50  Cal.  376; 
(Ohio),  224.  Kruse  v.  Wilson,  79  lU.  233. 

^2  Bou.  Law  Diet.  466,  and  cases 
cited,  and  see  Tubbs  v.  Gatevvood, 
26  Ark.  128. 


CIIAPTEPt  XV. 


COXVEYAXCES  BY   IXTJlViDL  M.S. 


§  1.  Deeds  in  general. 

2.  Dce'ls  iKtIl  and  iudonturos. 

3.  Construction  of  deeds. 

4.  Validity. 

5.  Warranty  deeds. 

6.  Abstract  of  warranty  deeds. 

7.  Notes. 

8.  Quitclaim  deeds. 

9.  Abstract  of  quitclaim  ilcods. 

10.  Effect  of  covenantii  in  quit- 

claim deeds. 

11.  Sjx-cial  warranties. 

12.  Statutory  forms. 

V-j.  Common  law  conveyances. 

l-t.  Release. 

1").  Confirmation. 

16.  Surrender. 

17.  Assij^nment. 


^  18.     Conveyances  infuturo. 

19.  Ci^nveyances  of  special   in- 

terests and  estates. 

20.  The  same  —  Continued  —  Il- 

lustrations   of    special 
cases. 

21.  Restrictive  and  conditional 

convej-ances. 

22.  Prohibited      conveyances  — 

Adverse    seizin.     ' 

23.  Continued — I<>audulent  con- 

veyances. 

24.  Conveyances  subject  to  iji- 

cumbrance. 

25.  Dedication  by  deed, 

26.  Resulting  tnists. 

27.  Re-records  and  duplicates. 


§  1.  1)«'(m]s  ill  Ooiioral.  In  the  United  States,  tlic  tocli- 
nical  i)riiicij)los  relatino-  to  common  law  conveyances  scctn 
to  be  wliolly  or  in  a  great  measure  inai)plicahle.  Tiie  tend- 
ency of  modern  legislation,  as  well  as  the  current  of  later 
decisions,  has  Ix'on  tosim|)lify  the  forms  of  convcyaiu-e  anil 
to  reduce  the  number  of  the  metlKwls.  The  deeds  conniionlv 
in  use,  and  by  which  the  great  bulk  of  real  estate  transac- 
tions between  individuals  is  I'lfcricd,  jire  the  i\o('t\  of  bargain 
and  Side,  jiopidarly  known  as  "  AVarraiity  Deeds"  jind  the 
deed  of  relea.se  and  (juitcl.iim,  known  as  '' (^)uit('laim  Dced.s." 
To  th«*S(;  may  be  a<ldi'(l  u  tliii-d,  a  iU'nl  <>f  non-claim,  com- 
bining rjualities  [K'culiar  U)  bctth  of  tlm  oth(>r  classes,  and 
calle<l    "SiH'cial  Warranty    DtM-ds," '  wlu-rcin    the   grantor 

'  TIjc  aUive  entimf-ralion,  tliough  forniH,  in  in  n-ality  but  om-  kind  nf 
till'  «'«»nv<'yanc<.«  ohmuihv  dilTereut     dctMl,  t**  wit,  it  liargain  ami  salf. 

(229) 


230  ABSTRACTS    OF   TITLE. 

covenants  onl}'  against  his  own  acts  and  those  who  claim 
under  him,  and  not  against  adx'crse  or  paramcnmt  titles. 
They  are  all  effectual  to  convey  the  fee,  or  whatever  interest 
the  grantor  may  possess,  and  will  always  do  so  unless  a  con- 
trarv  intention  is  expressly  manifest  or  clearly  deducible  l\v 
implication. 

§  2.  *' Deeds  Poll"  and  Indentures.  Conveyances  of 
laud  were  formerly  classed  as  "  deeds  })oll "  and  "  indent- 
ures," the  former  being  where  an  obligation  was  incurred, 
or  an  estate  conveyed,  by  only  one  of  the  parties  to  the 
transaction,  the  other  being  a  mere  recipient;  the  latter,  on 
the  other  hand,  contained  mutual  transfers  or  covenants,  the 
one  in  exchange  for  the  other.  A  deed  poll  was  a  single 
instrument,  signed  by  one  party,  and  delivered  to  the  other; 
an  indenture  consisted  of  two  or  more  parts,  of  the  same 
tenor,  executed  in  duplicate  by  both  parties,  and  inter- 
changeably delivered  by  one  to  the  other.  The  name  "  in- 
denture," is  said  to  have  originated  from  the  practice  of 
writing  both  parts  of  the  agreement  upon  one  parchment, 
and  then  cutting  them  asunder  in  acute  angles.'  The  phrase 
"  this  indenture  "  still  forms  the  initial  to  deeds  of  bargain 
and  sale,  though  such  conveyances  are  in  effect  deeds  poll, 
and  affords  another  instance  where  common  law  forms  of 
expression  have  been  retained  after  their  original  meaning 
and  technical  significance  have  been  lost. 

§  3.  Construction  and  Effect  of  Deeds.  The  general 
construction  of  deeds  is  favorable  to  their  validity,  and 
although  courts  can  not  give  effect  to  an  instrument  so  as  to 
do  violence  to  the  rules  of  language  or  of  law,  they  will  yet 
so  construe  it  as  to  bring  it  as  near  to  the  actual  meaning  of 
the  parties,  as  the  words  they  have  seen  fit  to  employ,  and 
the  rules  of  law  will  admit.^  The  intention  of  the  parties, 
when  it  can  be  ascertained,  will  always  control,  if  by  law  it 

1  2  Hill  Abridgment,  280;  2  Wash.  Churchill  v.  Reamer,  8  Bush  (Ky.), 

Real    Prop.    587;     2    Sharswood's  256;  Peckham  v.  Haddock,  36  111. 

Black  Com.  294.  38;  Hadden  v.  Shoutz,  15  111.  581; 

5  Callins  v.  Lavalle,  44  Vt.  230;  Jackson  v.  Meyers,  3  Johns.  395. 


CONVFA'AXCES    BY    INPIVini-ALS.  2'^\ 

may,  and  as  between  tliem  the  cloed  is  always  construed  nicest 
strongly  against  the  grantor.'  AVhen  the  words  of  a  deeil 
are  so  uncertain  that  the  intention  of  the  parties  can  not  be 
discovered,  tlie  deed  is  void.'  In  the  exposition  of  deeds, 
the  construction  must  be  upon  the  whole  instrunumt,  and 
with  a  view  to  give  every  part  of  it  meaning  and  etfect,  and 
the  intent  when  apparent,  and  not  repugnant  to  any  rule  of 
law,  will  control  technical  terms.'  AVhere  a  deed  ]nirports 
to  convey  all  the  interest  and  title  of  the  grantor,  elfect  will 
be  given  to  it  accordingly,  although  he  actually  held  a 
greater  interest  than  he,  at  the  time  of  the  convevance,  sujv 
posed  he  owned,  for  a  party  is  bound  to  know  enough  about 
his  title,  as  not,  by  his  want  of  knowledge,  to  mislead  a 
purchaser.* 

§  -i.  Validity.  In  all  works  treating  on  conveyancing, 
or  the  alienation  and  descent  of  real  pr<^i>erty,  the  subject  of 
validity  of  conveyances  of  land  as  affected  by  extraneous  evi- 
dence, rightly  occupies  a  prominent  position,  yet  in  a  work 
of  this  character  it  can  receive  little  more  than  passing  notice. 
The  j)rincipal  facts  which  tend  to  invalidate  deeds,  aside  from 
defects  of  form  or  substance,  which  appi-ar  from  inspection, 
are:  incapacity  of  the  parties;  inadequacy  of  consideration  ; 
fraud  in  the  inception;  and  undue  influences  or  duress  in  the 
procurement;  all  of  wliicli  must,  from  their  several  natures, 
be  shown  by  evidence  aUnnfh\  the  conveyance  upon  its  f"ae(> 
bein<' reirular  and  the  formalities  of  law  havin*'-  been  fiillv 
compli(;(l  with.'  There  is  an  im])ortant  distinetion  between 
void  and  voidable  deeds,  although  the  terms  are  often  used 
indiseriminat(,*ly.  A  deed  absobitely  void  j)asses  no  tille, 
while  a  deed  which  is  voi(hd>le  merely  may  l)e  the  fouiida- 

'  City   of    Alton   v.    Tr:iiiKi><»rlji-  '  A  ituicliascr.of  l;iii  d  from  aj  linr 

tion  Co.,  12111.  ;JH;  Jucktumt'.  Hud-  humt  jUlc  holder  who  aci|uii-*-<l  the 

Koii,  !)  JohtiH.  375.  le^^al  titlo,  lus  hIiowii  liy  thi-rc<-ordN, 

»  Hollin  r.  I'ickftt,  2  Hill.  ri22;  for  a  valualiUwoiiKidcration.  with- 
.I.ukfvm  r.  I^^KV^•lt,  Hi  .Johiiri.  t)7;  out  iiotin*  of  anyoiitxtandiiiKetitii- 
I'i-oii;!  ?'.  Darht,  I'M  III,  071.  ly,  will  Ih*  |iroteet4'd  against  Hu<h 

•  ( 'alliiiH  f.  I*:iva'l<',  41  Vt.  2W;  i><|uity,  even  tlion^'h  In*  liiiiim>lf  had 
SaundiTH  r.  llaiicH,  -M  N.  Y.  2.'»;{.  notice  th<-ri'of:    I'uck  v,   Ari'liail, 

*  ThouiuH  V.  CImago,  5.1  III.  lUU.  m:,  111.  1  |;J. 


202  AIJSTUACTS    OF   TITLE. 

tion  of  a  good  title  in  tlic  hands  of  a  subsequent  purcluiscr 
Avithuut  notice.'  The  term  "  void  "  is  seldom,  unless  in  a 
very  clear  case,  to  be  regarded  as  imi)lying  a  com])lete 
nullity;  but  it  is,  in  a  legal  sense,  subject  to  large  qualiiica- 
tions  in  view  of  all  the  circumstances  calling  for  itsap})lica- 
tion  and  the  rights  and  interests  to  be  affected  in  a  given 
case.'  Statutes  not  infrequently  declare  acts  void,  which 
the  tenor  of  their  provisions  necessarily  makes  voidable  only. 
Deeds  are  seldom  absolutely  void,  though  they  may  be  rela- 
tively so,  and  incapable  of  legal  effect  as  between  the  parties^ 
but  in  regard  to  the  consequences  to  third  persons  the  dis- 
tinction is  highly  important.'  Matters  in  j^a^s  arc  seldom 
known  to  the  examining  counsel,  who  is  justified  in  pro- 
nouncing that  a  good  title  which  appears  so  of  record,  and 
which  in  fact  is  such,  until  assailed,  or  set  aside  by  compe- 
tent authority.  As  respects  subsequent  purchasers  without 
notice,  the  right  or  title  conferred  by  a  conveyance  is  to  be 
determined  by  the  instrument  itself  as  recorded,  and  not  by 
facts  in  ^;«26'  or  other  instruments  not  recorded.*  Latent 
ambiguities  and  defects  do  not  usually  avoid  the  deed,  and 
a'  deed  intended  to  correct  an  error  in  a  former  deed  by  the 
same  grantor,  will  cure  such  defect,  and  take  eff-ect  by  re- 
lation as  of  the  time  when  the  erroneous  deed  was  given, 
the  same  as  if  it  had  been  reformed  in  equity.^ 

§  5.  Warranty  Deeds.  The  most  familiar  form  of  con- 
veyance known  to  our  law,  is  the  deed  of  bargain  and  sale 
technically  called  a  warranty  deed.  The  legal  import  of  a 
deed  of  this  character  is  simply  that  there  is  no  resulting 
ti'ust  in  the  grantor,  who  is  estop])ed  from  ever  after  deny- 
ing its  execution  for  the  uses  and  purposes  mentioned  in  it," 
while  its  name  is  derived  from  the  personal  covenants  which 

'  Crocker  v.    Ballangee,  6  Wis.  Iowa,  201;  Kearney  r.  Vaughn,  50 

645.  Mo.  284. 

''Brown  u  Brown,  50  N.  H.  538;  "Miller  r.   Ware,   31   Iowa,  524; 

Kearney  v.  Vauglin,  50  Mo.  2.S4.  Peck  v.  Arehart,  95  111.  113. 

^Bromly  v.   Goodi-ich,   40  Wis.  ^Hutchinson    v.    R.    R.    Co.,  41 

131;Seylar  v.   Carson,   69  Pa.  St.  Wis.  541. 

81;  Van    Schaac    v.    Robbins,    36  <*Kiiuball  t;.  Walker,  30  111.  482. 


COXVEYAXCES    BY    INDIVIDUALS,  233 

folIoNV  the  luibendum.  The  operative  \vords  <>i  ciuivcyanco 
in  this  class  of  deeds,  are  *'  gniut,  b;u"gain  and  sell,"'  which 
in  many  States  are  express  covenants  of  seizin,  freedom 
from  incumbrances,  and  quiet  enjoyment,'  unless  their 
statutory  elfeot  is  rendered  nugatory  or  limited  by  express 
words  contained  in  such  deed/  It  is  still  a  common  prac- 
tice for  the  conveyancer  to  insert  in  warranty  deeds,  as  well 
as  in  other  classes  of  conveyances,  all  the  operative  terms 
used  in  transferring  land;  as,  "  grant,  bargain,  sell,  remise, 
release,  alien,  convey  and  confirm,"  though  their  presence, 
save  where  they  imply  covenants,  is  no  longer  necessary. 
This  was  formerly  done,  that  the  instrument  might  take 
etfect  in  one  way  if  not  in  another,  and  in  such  case  the 
]>arty  receiving  the  deed  had  his  election  which  way  to  take 
it.  Thus  according  to  the  words  used,  he  might  claim 
either  by  grant,  feolfmcnt,  gift,  lease,  release,  conlirmation 
or  surrender.  The  majority  of  the  foregoing  words  of  grant 
are  now  superlinous,  exc3pt  that  in  a  few  Statss  the  words 
"grant,  bargain  and  sell"  must,  under  the  statute,  be  con- 
strued as  exi)ress  or  im})lied"  covenants,  for  sci/in.  against 
incumbrances,  etc.,*  yet  the  rule  that  the  law  of  the  State 
where  the  land  lies  governs  the  interpretation  of  the  deed, 
does  not  warrant  the  implication  of  ])ersonal  covenants,  not 
authorized  by  the  law  of  the  State  where  the  deed  was  nuule. 
Tiie  (juestion  whether  the  words  shall  import  covenants 
must  be  decided  by  the  law  of  the  latter  State.'  It  must 
ba  understood  that  some  words  evidencing  an  intention  must 
ajtpiar,  but  tlie  conveyancer  has  a  choice  of  a  number,  and 
the  word  "convey,"  wliich  is  mttst  in  use,  fully  expresses 
the  intent,  and  is  effectual  for  all  purjioscs." 

§  G.     Abstract   of   Warranty    IMmmI.     In    ]inparing   an 
al)ridginent  of  an  ordinary  deed  of  bargain  and   sah',  whi-n 

'  Pri'tlyiii.-m  v.  Wilkry,  lit  III.  ',>:$.">;  *  An  cxtrfiiicly  Miiniilt-  form  (jf  n 

Hawk  V.  M'  < 'iill<>(i;;li,  'Jl  III.  »»:i().  di-.-d  iij  fc«'  is  ;^ivfii  in  l  Kent  Coin. 

•Finlcy  »•.  SU-«U',  2:J  III.  -VJ.  4«1;  uml  w<-  Hiit^hinH   v.  <  arUton, 

'Hr.><li<-  V.  WatliinH.  HI  Ark.  :m»;  \M  N.  II.  ImT;  Hriilgu  f.  Wfliin^iU.n. 

Finl.-y  «•.  SUr-l.-.  *.>:{  III.  .'.O.  1  MivyH.  'Jiy. 

MI.iIm1  r.  I'..lli.l    r.t  I...1     I'JS. 


234:  A15STKACTS    OF    TITLE. 

drawn  in  tlio  usual  manner  and  unincumbered  by  an}^  un- 
usual conditions  or  stipulations,  only  the  salient  features  are 
necessary,  it  being  undei-stood  that  the  deed  is  in  form,  and 
that  all  the  essential  rc(|uisites  have  boen  complied  with. 
Wore  this  otherwise  the  abstract  would  become  unneces- 
sarily bulky  and  cumbersome,  and  defects  when  shown 
would  be  less  readily  detected.  This  is  the  universal  cus- 
tom of  examiners,  and  the  method  seems  to  have  met  the 
a})probation  of  the  legal  profession.  An  ordinary  convey- 
ance is  sulliciently  presented  as  follows  : 


John  Smith.,  and 

Mai'ij  Jj.^  his  loife^ 

to 

Thomas  L.  Jones. 


Warranty  Deed. 

Dated  June  1,  1SS2. 

Recorded  June  28,  1882. 

Volume  28,  page  10. 

Consideration  $1,000.00. 
Conveys  land  iii  Racine  county,  Wis.,  described  as  lot 
fourteen,  of  Uoch  twenty-eight,  of  RosweWs  Addition  to  the 
village  cf  Enimetsbiirgh,  heing  a i)art  of  the  nortlieast  quarter 
of  section  thirty-six,  toivn  two  north,  range  fourteen,  east  of 
the  third  jirincipal  meridian. 
Acknowledged  Jane  1,  1882} 

The  foregoing  example  pre-supposes  good  Avorlc  on  the 
part  of  conveyancer  and  examiner,  and  that  the  instrument 
as  shown  of  record  is  regular  in  form  and  properly  executed 
and  acknowledged.  It  further  carries  the  presumption  that 
no  recitals  appear,  other  than  those  common  to  all  deeds  of 
bargain  ami  sale,  and  that  all  the  covenants  necessary  for 
the  proper  assurance  of  the  estate  conveyed  appear.     Should 

'  In  the  abstract  of  ancient  con-  ance  lias  been  dispensed  with  in  a 

veyances  it  may  be  necessaiy  to  majority  of  the  States  for  upward 

show  a    trifle  more  than   is  here  of  fifty  years,    their  insertion   or 

noted.     The  words  of  inheritance  omission    in  ancient    gi'ants  will 

in    the  premises  and    habendum  have  but  little  effect  on  the  titles 

may  be    material  in  determining  of  to-day,  which,  though  defective 

the  nature  of  the  estate  conveyed,  originally,  have  been  perfected  by 

but  as  the  necessity  of  the  word  the  effluxion  of  time. 
"  heirs"  or  other  words  of  iiflierit- 


CONVEYANCES    BY    INDIVIDUALS.  235 

the  examiner  desire,  however,  to  note  the  covenants,  he  may 
insert,  "  Full  covenants  of  seizin  and  Avarrant}'."  Defects 
of  form  or  substance,  occurring  in  any  part  of  the  deed, 
must  be  suitably  noticed  as  suggested  in  the  preceding  chap- 
ter. In  ancient  deeds  the  habendum  may  be  shown  thus, 
"  habendum  to  heii-s  and  assigns." 

§  7.  Xotes.  The  matter  of  examiner  s  notes  has  already 
been  discussed.  These  should  be  ai)pended,  whenever  practi- 
cable, immediately  after  the  deed  to  which  the}^  allude;  as, 
in  the  foregoing  example,  if  the  abstract  is  of  the  oi-igiiial 
instrument  and  not  of  the  record  thereof,  a  mention  of  the 
fact  immediately  follows  same,  thus : 

Note. — The  particulars  of  the  foregoing  deed  taTcen  from 
the  original  instrument. 

§  8.  Quitclaim  Deeds.  A  quitclaim  deed  is  as  effectual 
for  transferring  the  title  to  real  estate  as  a  deed  of  bargain 
and  sale,'  and  passes  to  the  grantee  all  the  present  interest 
or  estate  of  the  grantor,"  together  with  the  covenants  run- 
ning with  the  land,  unless  there  be  special  words  limiting 
and  restricting  the  conveyance.'  But  while  a  quitclaim  deed 
is  as  effectual  to  pass  title  as  a  deed  of  bargain  and  sale,  still, 
like  all  other  contracts,  it  must  be  expounded  and  enforced 
according  to  the  intention  of  the  parties  as  gathered  from 
the  instrument,  and  if  the  words  used  indicate  a  clear  inten- 
tion to  piiss  only  such  land  or  interests  as  the  grantt»r  then 
owns,  lands  embraced  in  a  prior  valid  deed  have  been  held 
to  be  reserved  from  its  oi)ei"ition,  even  though  such  ]»rior 
deed  remains  unrecorded.*  It  is  a  rule,  however,  of  general 
ai)i)licati(jn,  that  a  (piitelaiiii  deed,  when  recordeil,  t^ki's  ]»rec- 
e<lence  of  a  j)ri(tr  unrecorded  warranty  deed,  from  the  same 
grantor,  the  pur  liaser  under  the  quitclaim  having  no  notice 

'Morgan  v.   Cluj  tuii,  Ol    111.  WTr,  ixntit-r  ?•.  AVilli.imKuii,  LT)  ( 'al.  15s. 

Kowe  V.  iV'ckcr,  yo  Iii«l.  ir>l;  Tin-  'Urady   v.   Spnuk,   T,    III.    478; 

fjrec*  V.  WutkiiiK,  15  Vt.   ITIJ.  JIanI<ri  v.  Chase.  Wi  M<-.  ',Vi\). 

•Ni«hol««)n  r.  (  an-KH,  1511  <1.  17(t;  *llaiiiiUun  r.  DoulillU-,  ;J7  111. -ITa. 
Carter  v.  VVi  .-,  :j;)  T.x.  27:5;  Car- 


23G  ABSTRACTS    OF    TITLE. 

of  tlio  prior  deed,  and  there  being  no  words  therein  sugges- 
tive of  an  earlier  conveyance.' 

A  quitclaim  deed,  thougli  effectual  as  a  present  convey- 
ance, wlien  unaccompanied  by  warranty,  will  not  operate  to 
carry  a  subsequently  acquired  title,"*  nor  can  one  who  takes 
uiidor  such  a  deed  be  regarded  as  a  bona  fide  purchaser, 
without  notice  of  outstanding  titles  and  equities.'  He  ob- 
t.iins  just  such  a  title  as  the  vendor  had,  and  the  laud  in  his 
hands  remains  subject  to  all  the  equities  attachin;^-  to  it  in 
tlie  hands  of  the  vendor,  though  they  nuiy  be  unknown  to 
such  purchaser.*  But  it  would  seem  this  harsh  doctrine  is 
not  applicable  in  all  cases.  It  prevails  in  settling  conflicting 
titles,  and  is  intended  to  protect  equities  as  against  those 
charged  with  notice  of  their  existence,  but  is  never  invoked 
t(.)  protect  a  fraudulent  grantor  who,  by  false  representations, 
induces  a  confiding  purchaser  to  believe  that  he  acquires  a 
good  title  under  a  quitclaim  deed.^  In  the  absence  of  fraud, 
however,  a  party  accepting  a  quitclaim  deed  takes  the  risk 
of  the  title,"  for  ^vhere  a  ])erson  purchases  of  another  who  is 
willing  to  give  only  a  quitclaim,  he  may  properly  enough  be 
regarded  as  bound  to  inquire  and  ascertain  at  his  peril  what 
outstanding  equities  exist,  if  any.  His  grantor  virtually 
declares  to  him  that  he  will  not  warrant  the  title  even  as 
against  himself,  and  it  may  be  presumed  that  the  purchase 
price  is  fixed  accordingly.'  A  different  rule  prevails  as  to 
the  grantee  of  one  holding  under  a  quitclaim,  when  such 
grantee  holds  by  a  warranty  deed,  and  in  such  case  such 
sul)sequent  giuntee  is  presumed  to  be  a  honafide  purchaser 
for  value.    He  is  not  affected  by  the  mere  fact  that  he  takes 

'  Brown  v.  Coal  Oil  Co.  ,97  111.  214;  v.  Brattle,  46  Iowa,  68S;   Oliver  v. 

Graff    V.  Mitklleton,   43  Cal.  341;  Piatt,  3  How.  (U.  S.)  363. 
Marshall  v.  Koberts,  18  Minn.  405.  •«  Mann  v.  Best.  62  Mo.  491;  May 

« Comstock  V.  Smith,  13  Pick.  116;  v.  LeClaire,  11  Wall.  (U.  S.)  217. 
Jackson  r.Winslow,  9  Cow.  13;  Har-  *  Ballon  v.  Lucas,  14  Reporter, 

riman  v.  Gray,  49  Me.  538 ;  Kinsman  265. 

i\  Loomis,  11  Ohio,  475;  Miller  v.  ®  Botsford  v.  Wilson,  75  111.  132; 

Ewing,  6  Cush.  34.  Thorp  v.  Coal  Co.,  48  N.  Y.  253. 

3  StofTi-1  V.  Schroe<ler.  62  Mo.  147;  '  Winkler  v.  :Miller,  54  Iowa,  476. 

Carter  r.  Wise,  39  Tex.  273;  Springei 


CONVEYANCES    BT    INDIVIDUALS.  Zo  » 

throufrh  a  quitclaim  deed,  and  will  take  the  title  free  from  out- 
standing equities  of  Avhich  he  had  no  notice.  It  is  the  policy 
of  the  law  that  real  estate  titles  should  become  matters  of 
certainty  as  far  as  possible,  and  as  quitclaim  deeds  occur  in 
the  lives  of  many  titles,  a  different  rule  than  the  one  above 
set  forth  would  tend  to  unsettle  titles,  hinder  and  delay  im- 
provements and  impair  the  selling  value  of  all  such  prop- 
erty. 

§  9.  Abstract  of  Quitclaim  Deeds.  As  in  the  case  of 
simple  warranty  deeds,  only  the  main  features  of  quitclaim 
deeds  need  be  shown  in  preparing  a  synopsis  of  same. 
The  operative  granting  words  of  deeds  of  this  nature  are 
"  remise,  release,  convey  and  quitclaim ;"  but  any  other  words 
indicating  conveyance  will  do  as  well  and  have  the  same 
effect.  In  the  abstract  it  is  not  customary  to  recite  these 
words,  but  the  description  is  headed  by  the  simple  word 
"  conve}'',"  the  examiner  indicating  the  natui'e  and  legal  im- 
port of  the  instrument  by  the  name.  Should  the  deed  con- 
tain the  statutory  words  whicli  raise  covenants,  tliey  then 
become  material,  for  the  instrument  in  effect  becomes  a 
warranty  deed,  though  in  form  a  quitclaim."  To  raise  a 
statutory  covenant  the  very  words  of  the  statute  must  be 
used,'  and  if  only  a  part  of  them  appear,  as  "grant,  sell  and 
convey,'^  the  deed  will  remain  a  quitclaim."  It  is  the  custom 
of  conve^^ancers  to  insei-t  after  the  words  of  grant,  a  recital 
of  tlie  estate  or  interest  conveyed;  as  all  "  riglit,  title,  inter- 
est," etc.,  but  this  is  the  legal,  as  well  as  the  statutory  effect 
of  tlie  deed,  and  tlieir  omission  or  insertion  is  immaterial  to 
the  deed  and  conse(piontly  of  no  im])()rtance  to  the  abstract, 
except  wlien  tliey  clearly  indicate  a  prior  conveyance,  or 
afford  constructive  or  actual  luttice  of  existing  e(piiti«'s. 
AVIi<?re  tlie  (Umd  contains  covenants  of  any  kind,  ])artii'iilarly 
of  warranty,  tlie.se  words  become  materi;d,  liowrvcr,  and  in 
some  States  they  are  oi  conti'olling  edica'-y,'  as  j)er  tlii'  suc- 
ceeding paragrajjli. 

'DoWolfr.  Hnyfl<'n.  aj  111.  Wr,.  a2n:   Frink  v.    Dnrst.    11    III.    '.]U\; 

'ViiK.rwl  V.  Iltirll.nt,  22  III.  220.  Yoimik  r.  (•|i|i|.iii;,'.T.  11  K.iti.  1  1H. 

•Wl.ii-lir.U  r.  Ciitwal,  '.i  iVim.  *Sco  llolbrook  u.  DcImj,  »'J  11!.  :!S2. 


23S  ABSTRACTS   OF   TITLE. 

§  10.  Effect  of  Covenants  in  Quitclaim  Deeds.  Tnas- 
miu-h  as  the  ])articular  gnmting  words  employed  in  deetls 
are  now  of  coiiH)aratively  little  luonient,  if  one  conveys  land 
with  a  treneral  covenant  of  warranty  afjjainst  all  lawful  claims 
and  demands,  he  can  not  be  allowed  to  set  up  a«j^ainst  his 
grantee,  or  those  claiming  under  him,  any  title  subsequently 
acquired,  either  by  purchase  or  otherwise,  and  such  new  title 
will  inure  by  the  way  of  estoppel  to  the  use  and  benefit  of 
his  grantee,  his  heirs  and  assigns.'  But  where  the  deed  does 
not  on  its  face  purport  to  convey  an  indefeasible  estate,  but 
only  "  the  right,  title  and  interest "  of  the  grantor,  though 
containing  covenants  of  ownership,  warranty,  etc.,  it  will,  it 
seems,  only  convey  such  interest  in  the  land  as  the  grantor 
has  at  the  date  of  the  deed,'  and  the  covenants  are  to  be 
regarded  as  having  reference  to  and  as  being  qualified  and 
limited  by  the  grant.'  In  a  like  case,  where  the  grantor 
agrees  to  warrant  the  title  conveyed,  only  as  against  all 
claims  derived  from  himself,  he  is  understood  to  refer  to  ex- 
isting claims  and  incumbrances,  and  not  to  any  title  he  might 
afterward  derive  from  a  stranger.'  As  quitclaim  deeds  are 
ordinarily  draAvn,  after  the  words  of  grant  are  a  number  of 
words  limiting  or  defining  the  estate  conveyed;  as  "  all  right, 
title,  interest,  claim,  demand,"  etc.,  Avhicli  in  what  are  usually 
termed  "  straight "  deeds,  may  be  disregarded;  but  when  fol- 
lowed by  covenants,  it  is  addsable  that  every  ])art  of  the 
instrument  which  tends  to  show  the  nature  and  extent  of 
the  granted  estate  be  set  out,  including  all  the  operative 
parts  of  the  premises  and  the  habendum.  A  distinction  has 
been  made  by  the  courts  between  such  deeds  as  quitclaim  or 
release  the  land  itself  and  such  as  merely  release  whatever 
interest  the  grantor  may  have  in  the  land,'  and  though  the 

'Comstockr.  Smith,  13  Pick.  119.  "Bo^  r.    Shoab,     13  Mo.   378; 

'  Brown  v.   Jackson,    3  Wheat.  Gee  v.  Moore,  14  Cal.  474;  Allen  v. 

(U.  S.)  440  Bowen  v.  Thrall,  28  Vt.  Holton,  20  Pick.  458;  Holbrook  v. 

aS2;  Biunchard  v.  Brooks,  12  Pick.  Debo,  99  111.  372. 

(Mnos.)  47.  *  See  Holbrook  r.    Debo,   99    111. 

3  Boll     V.     Twilight.     6     Foster  372;  Blanchard  v.  Brooks,  12  Pick, 

(y.  H.),  411;   Rawie  Gov.    for  Tit.  46. 
420. 


CONVEYANCES    BY    INDIVIDUALS.  239 

distinction  does  not  ahvays  seem  to  rest  in  sound  reason,  yet 
where  such  doctrine  obtains,  no  other  safe  course  is  open  to 
the  examiner  than  that  above  indicated,  and  it  is  immaterial 
whether  the  deed  be  one  of  the  quitchiim  or  non-claim.* 

§  11.  Special  Wjirraiities.  There  is  in  common  use  in 
the  United  States,  though  it  would  seem  to  be  rarely  em- 
ployed in  England,  a  deed  of  conveyance,  with  a  limited 
warrant}^,  variously  known  as  a  ''  special  warranty  "  or  deed 
of  •'  non-claim."  In  its  original  form  the  non-claim  was  in- 
serted immediately  after  the  habendum,  without  the  usual 
words  of  covenant  being  prefixed,  and  purported  to  be  a 
denial  of  any  further  rights  in  the  grantor  in  relation  to  the 
pro}ierty  conveyed,  and  from  which  he  was  "  utterly  debarred 
and  forever  excluded "  by  virtue  of  the  instrument.^  The 
covenant  might  be  general,  but  was  usually  limited  to  the 
fn-antor  and  those  claiming  under  him.  As  now  framed  it 
is  a  limited  personal  covenant,  not  as  against  paramount 
title,  but  only  so  far  as  concerns  the  acts  of  the  grantor.  It 
is  a  covenant  of  warranty  to  the  extent  of  its  import,  and 
differs  from  a  general  warranty  only,  in  that  one  is  war- 
ranty against  any  and  all  paramount  titles,  wliile  the  other 
is  against  the  grantor  himself,  and  all  persons  claiming  by, 
through  or  under  him.'  "As  a  general  rule,"  says  Kawle,* 
"  no  distinction  has  in  any  way  been  taken  between  such  a 
covenant,  and  the  ordinary  covenant  of  warranty.  Both 
are,  in  general,  held  to  have  the  same  operation  by  way  of 
estoppel;  both  equally  ]iossess  the  capacity  of  running  with 
the  land,  and  confer  the  same  rights  as  to  a  recovery  in 
damages."  *  Such  a  deed,  however,  can  not  be  extended  to 
a  general  covenant  (jf  warranty,  and  as  it  contains  no  cov- 
enants to  secure  the  title,  an  aggrieved  party  can  have  no 

'Gil>!»s  V.  Tliayer,  6  Ciish,  32.  *Tlu'  followinp:  rases  sustain  tl>o 

•See  liawle  on   Gov.  for  Title,  p.  text:  Kimball  v.  niaisildl,  5  N.  H. 

223,  3<1  Ed.  r,:V.];  (Jilibs   v.  Tiiayer,  G   C'lisli.  33; 

MIolbrwk   r.  Dfho,   99   111.372;  ( ■laimdi  ?'.  y\llcn.  12  Ala.  1153:  n<'n- 

Porter  v.   Sullivan,  7  Gray,   Ml;  intt  r.  Wall.-r,  23  Ill.<»7;   llolhri.nk 

Latlinjp  V.  Sn<ll,  11  C»isli.  l.-)3.  v.  Del.o,  99  III.  372. 

«Kii\vlo(jn  C<jv.  for  Tillu   p.  223, 
."..1  K<1. 


240  ABSTUACTS    OF    TITLE. 

roniMly  under  it  on  the  ground  of  a  mere  failure  of  title, 
])r(>vid<'d  there  has  been  no  fraud  in  the  transaction.'  The 
deed  is  shown  in  the  abstract  the  same  as  a  warranty,  except 
that  it  is  rated  as  a  "  special  Avarranty."  Give  the  o])era- 
tive  words  of  grant,  if  material,  i.  e.,  if  implying  covenants, 
and  notice  express  covenants  as  follows : 

Grantor  covenants  against  his  own  acts,  anl  those  claiming 
hy,  ill  rough  or  binder  him  only. 

The  legal  effect  of  the  deed  as  a  conveyance  is  of  course 
equal  to  a  deed  of  bargain  and  sale''  in  any  other  form.  Its 
defects  as  a  conve3''ancG  must  be  noted,  as  in  other  cases,  and 
the  remarks  and  suggestions  as  to  deeds  generally  will  ap- 
])ly  to  these  and  all  other  classes,  but  will  not  be  further 
alluded  to,  when  speaking  of  each  particular  kind,  to  avoid 
]irolixit3\ 

§  12.  Statutory  Forms.  While  the  tendency  of  courts 
and  conveyancers  has  been  to  modify  and  reduce  the  com- 
mon law  forms  of  expression  in  conveyances  of  land,  the 
radical  hand  of  the  legislator  has  been  felt  of  late  years,  in 
the  sweeping  changes  made  in  many  of  the  States,  in 
reirard  to  the  form,  contents  and  effect  of  deeds  and  kindred 
instruments.  Statutory  forms  are  prescribed,  as  short  and 
curt  as  those  they  are  intended  to  sujiplant  were  often  long 
and  verbose.  The  Avisdom  of  these  forms  has  often  been 
doubted,  while  their  poverty  of  language  has  not  endeared 
them  to  the  conveyancer,  and  as  the  statute  has  left  their 
use  optional  they  have  not  as  yet,  in  many  localities,  come 
into  very  general  use.  The  operative  words  of  statutory 
deeds  purporting  to  convey  the  f ?e,  are  "  convey  and  war- 
rant," which  words  have  also  the  effect  of  express  covenants 
of  seizin,  good  right  to  convey,  freedom  from  incumbrances, 
peaceable  possession  and  warranty  of  title.     Deeds  made  in 

'  Buckner  v.  Street,  15  Fed.  Rep.  that  form,  but  in  common  parlance 

365.  the  name  has  been  appropriated  to 

'  This  species  of  conveyance  is  a  "  waiTanty  "  deeds,   and  to  avoid 

deed  of  " bargain  and  sale"  with  confusion  the  same    signification 

limited  warranty,  and  usually  takes  has  been  retained  in  this  work. 


CONVEYANCES   BY    INDIVIDUALS.  24J 

conformity  to  statute  have  all  the  force  and  effect  of  cove- 
nants that  are  usually  contained  in  tlie  common  law  deeds. 
All  the  covenants  mentioned  in  the  statute  are  to  be  rei::arded 
and  treated  as  though  they  were  incorporated  in  the  deed, 
of  which  they  constitute  a  part  as  effectually  as  if  they  were 
written  therein.'  The  op3i*ative  words  of  conveyances  of 
naked  interests  are,  "  Convey  and  quitclaim,"  and  these 
words,  in  either  case,  should  always  be  given  in  the  abstract 
which,  in  other  respects,  will  not  differ  from  the  ordinary 
forms  of  abridgments  alread}^  shown. 

§  13.  Common  Law  Conveyances.  In  addition  to  the 
deed  of  bargain  and  sale,  Avhich  in  its  tliree-fold  form  of 
'•  warranty,"  "  quitclaim  "  and  "  non-claim  "  has  been  made 
a  statutory  conveyance  in  a  majority  of  the  States,  there 
exists  a  number  of  technical  conveyances  which  are  derived 
from  the  land  and  conveyancing  system  gf  Great  Lritain 
and  are  popularly  known  as  common  law  deeds.  These 
consist  primarily  of  the  deeds  of  Release,  Confirmation,  Sur- 
render and  Assignment.'  These  deeds  were  all  highly  tech- 
nical, long,  and  verbose,  and  displayed  to  fine  advantage 
those  extremely  complex  but  finely  rounded  sentences,  that 
so  delighted  the  heart  of  the  conveyancer  of  the  last  centurv 
and  furnished  so  much  food  for  disquisition  and  disputation 
in  construing  estates  under  the  complicated  English  land 
tenures.  In  the  United  States  they  have  lost  somewhat  of 
their  redundancy,  though  there  are  not  wanting  to-day  many 
forms  needlessl}''  long  and  uselessly  ]ir()lix,  and  the  difference 
in  our  land  S3'stem  and  estates  thereunder  has  robbed  them 
of  much  of  their  original  significance.     There  now  exist  but 

'  Can-er    v.   lyjuthain,   38  Ind.  derived  froni  tlie  statute  of  iisi>s, 

530;  K«'nt  r.  Caiitrall,  44  Ind.  4.'>2.  to  wit:    Covenant   to  stand  seized 

*  Till?  elementry  writers  el.-iKsify  to  uses;     barj^ain  and   Siile;   lexse 

common  law d«'Ml8 as  fcdiows:  Five  and    release;    dee<l    to  lead  or  do- 

orij^nal  eonvc-yanees,  to  wit:  Fe<jlf-  clare  the  u-ses  of  other  more  direct 

ment.fJift,  Rent,  Lease,  Exchange  conveyances:  and  deeds  of  revoca- 

and  I'artitif)n;  five  derivative  con-  tion  of  uses:  Willard.  Conveyanc- 

veyances,  tri  wit:lieleaiM\('onnrnj-  inp;,    U'J;     3    Wash.    Keal    rroji., 

ation,  .Surr<n<l«T,  AsHi;jnment  and  Cliap.  5. 
Defeiuwince;  and  live  conveyances 
Hi 


242  ABSTRACTS    OF   TITLE. 

few  estates  that  can  not  be  adequately  conveyed  by  deed  of 
l)arij;'ain  and  sale,  and  in  a  majority  of  instances  a  "  quit- 
chiiin"  deed  will  accomplish  all  tliat  was  formerly  sought 
through  the  media  of  the  deeds  above  enumerated. 

§  14.  Release.  The  term  "  release,"  in  its  ])opular  and 
limited  signilication,  is  now  used  to  denote  the  instrument 
whereby  the  interest  conveyed  by  a  mortgage  is  reconveyed 
to  the  owner  of  the  fee,  and  it  is  also  used  generally  to 
designate  the  conveyance  of  a  right  to  a  person  in  possession. 
In  England,  it  obtains  in  a  four-fold  form,  and  is  one  of  the 
most  imjiortant  of  the  common  law  forms  of  conveyance.' 
In  the  United  States,  the  technical  principles  relating  to 
deeds  of  this  character  are  wholly,  or  in  a  great  measure 
inajiplicable,  while  the  conveyance  which  corresponds  to  a 
release  at  common  law,  is  the  popular  quitclaim  deed,  the 
operative  words  of  conveyance  being  the  same  in  both  deeds. 
If  a  release  is  used  it  is  regarded  as  a  substantive  mode  of 
conveyance.'  Where  a  deed  remising  and  releasing  prem- 
ises, contains  a  covenant  of  warranty  of  title,  either  general, 
or  simply  as  against  the  claims  of  all  persons  claiming  under 
the  grantor  only,  and  particularly  if  the  ha1)endum  be  to  the 
grantee,  his  heirs,  etc.,  it  will  not  be  a  simple  release,  but  a 
conveyance  of  the  fee,  and  a  title  subsequently  acquired  by 
the  grantor  will  inure  to  the  grantee,  unless  it  is  derived 
from  sale  under  an  incumbrance  assumed  by  the  grantee.' 

§  15.  Confirmation.  The  subject  of  confirmation  has 
been  several  times  alluded  to  in  the  course  of  this  work,  but 
mainlv  in  treating  of  confirmations  by  the  government  of 
previously  existing  but  inchoate  rights  to  what  would  other- 
Avise  be  public  land.     Deeds  of  confirmation  are  also  in  use 

'  Under  theEn.£clish  rules  of  con-  though  by  a  mere  fiction,  the  re- 
veyancing,  in  order  to  give  effect  lease  operating  by  way  of  enlarge- 
to  a  deed  of  release,  it  Ms  first  nee-  ment  of  the  estate,  is  effectual  to 
essarj-  to  execute  a  lease  (or  bar-  transfer  the  entire  title, 
gain  and  sale  for  a  year)  which  by  ^  Hall's  Lessee  v.  Ashby,  9  Ohio, 
force  of  the  statute  of  uses  puts  the  96. 

lessee  or  bargainee  in  possession,  ^People  ex    rel.  Weber  v.  Her- 

and  being  thus  in  possession,  al-  bel,  96  111.  384. 


CONVEYANCES   BY    INDIVIDUALS.  243 

among  individuals,  and  is  that  species  of  conveyance  whereby 
an  existinir  riii'ht  or  voidable  estate  is  made  sure  and  unavoid- 
able,  or  where  a  particular  interest  is  increased.  The  appro- 
priate technical  words  of  confirmation  are  "  ratify,  approve 
and  confirm,"  but  "  grant  and  convey  "  or  similar  terms  will 
have  the  same  effect.  Deeds  of  confirmation  are  not  in 
general  use,  as  a  "  quitclaim  "  is  effective  for  almost  every 
purpose  which  might  be  accomplished  by  the  former.  Fre- 
quently, however,  recitals  in  deeds  show  them  to  be  given 
in  ratification  or  confirmation  of  pre\^ous  acts  and  to  cor- 
rect error,  irregularities  or  infirmities  in  former  deeds,  in 
which  event  they  take  effect  by  relation  as  of  the  date  of 
the  former  act  or  deed,  and  the  confirmatory  words  become 
material  to  interpret  and  ex]ilain  the  undisclosed  intention 
or  correct  the  irre2:ularitv  of  the  former  deed. 

§  16.  Surrender.  A  surrender  is  defined  as  the  yielding 
up  of  an  estate  for  life  or  jears  to  him  who  has  an  immediate 
estate  in  reversion  or  remainder,  the  lesser  estate  being 
merged  in  the  greater  by  mutual  agreement,'  and  the 
term  is  applied  both  to  the  act  and  the  instrument  by  which 
it  is  accomplished.  It  is  directly  opposite  in  its  nature  to 
release,  which  technically  operates  by  the  greater  estate 
descending  upon  the  lesser.  The  operative  words  of  a  con- 
veyance of  this  nature,  are  "  surrender  and  yield  up,"  but 
any  form  of  words  that  indicate  the  intention  of  tlie  parties 
will  serve  the  same  purpose,  Avhile  a  surrender  is  alwa^^s  im- 
plied when  an  estate  incompatiljle  witli  the  existing  estate  is 
accepted.  Though  books  on  conveyancing  still  continue  to 
give  ample  forms  for  deeds  of  surrender,  the  quitclaim  deed 
in  conim<m  use  has  taken  its  ])lace  for  most  purposes,  but  it 
would  seem  that  this  is  still  the  proper  instrument  for  the 
relinquishment  of  leasehold  interests,  dower,  etc.  In  deeds 
of  surrender  the  spe(;ial  matter  of  inducement  usuall}'  ])re- 
cedes  the  oi)erativo  })art  of  the  deed;  as  in  case  of  leaseliDM, 
a  recital  of  the  lease,  etc.,  and  an  abridgment  of  this  matter 
should    appear   in    tiie   al)stract.     This,  and  tln^   suifeiidei- 

'  2  1{  ju.  I.;iw  Diet.  573;  Coke  Lilt.  3J7  b. 


24-i  ABSTRACTS    OF    TITLE. 

clause,  constitute  the  essential  distinctive  features.     An  ex- 
ample is  given  of  a  surrender  of  a  life  estate : 


William.  E.  Channing 
to 

Thomas  L.  Channing^ 
only  son,  and  heir  apparent  of 
said  Willia/n  E.  Channing. 


Surrender. 
Dated  J  etc., 


Itecites  that  [here  set  out 
hrieflij  the  matter  of  in- 
ducement, which  would  he, 
ill  this  case  the  instrument  conveying  the  life  estate  of  the 
father  and  the  remainder  to  the  son.']  Now  this  Indenture 
witnesseth  {it  is  stated)  that  said  first  party  in  consideration 
of  $1.00  grants,  surrenders  and  yields  up  to  second  party  all 
those  certain  premises  [descrihing  same]  and  the  estate  for  life, 
or  life  interest  of  said  first  party,  in  and  to  said  premises 
mentioned  to  he  herehy  granted  and  surrendered,  to  the  intent 
that  same  may  merge  and  hecome  absolutely  extinguished,  so 
that  said  second  party  may  he  in  the  actual  possession  of 
said  premises. 

[Note  covenants  if  any.] 

Acknowledgment. 

A  better  idea  of  the  abridgments  of  deeds,  and  other  in- 
struments presented  in  the  work,  would  be  obtained  if  it 
were  practicable  to  insert  the  original  instruments  in  con- 
nection therewith.  As  it  is,  the  reader  is  requested  to  com- 
pare same  with  the  forms  presented  in  any  form  book  and 
to  note  where  language  can  be  eliminated  without  im])air' 
ing  the  force  of  the  instrument,  and  where  slight  substitu- 
tions and  abbreviations  can  be  advantageously  employed. 
A  deed,  of  the  character  just  considered  is,  when  drawn  after 
the  regulation  pattern,  very  long  and  technicaL  Conden- 
sation in  such  cases  is  an  imperative  necessity,  while  the 
spirit  of  the  original  must  be  preserved. 

§17.  Assignment.  An  assignment  is  a  mode  of  convey- 
ance applicable  to  any  estate  in  lands  whatever;  but  the  term 
is  usually  employed  to  express  the  transfer  of  an  equitable 


CONVKYAXCES    BY    IXDIVIDUALS.  2i5 

estate  or  a  leasehold  interest,'  and  as  such  will  receive  atten- 
tion in  another  part  of  the  work.  The  operative  words  of 
conveyance  are  "assign,  transfer  and  set  over,"  but  any  otlier 
wonls  evincing  an  intention  to  make  an  entire  transfer 
are  suificient.' 

An  assignment  by  endorsement  on  a  deed  is  entirely  nu- 
gatory. Sucli  a  proceeding  might,  perha})s,  vest  in  the 
assignee  a  right  to  the  paper  itself,  but  would  not  alTect  the 
title  to  the  land.  At  best,  it  miglit,  inequity,  be  considered 
as  an  executory  contract,  on  proof  of  the  facts  connected  with 
it,  and  as  such  entitle  the  assignee  to  a  decree  for  si)ecitic  per- 
formance, but  it  would  not  operate  as  a  conveyance  of  the 
legal  title.' 

§  IS.  Conveyances  in  Fntnro.  At  common  law  an  at- 
tempt to  create  or  convey  a  freehold  or  estate  of  inheritance 
'uifutnro  was  a  nullity,  the  nearest  ap[)roacli  being  a  cove- 
nant to  stand  seized  to  uses,  and  this  was  only  permissible 
when  the  consideration  Avas  blood  or  marriage,^  nor  was  it 
until  very  recently  that  such  conveyances  have  been  recog- 
nized in  the  United  States,  unless  such  estate  had  first  been 
filtered  through  the  medium  of  a  trustee.  As  it  is,  such  con- 
veyances are  rare,  and  possiI)ly  in  many  States  of  doubtful 
efficacy.  Usually  they  will  be  found  to  take  the  form  of  a 
common  deed  of  bargain  and  sale,  with  a  proviso  restraining 
the  grantee  from  using  or  occu])ying  the  gi-anted  premises 
during  tlie  lifeor  lives  of  the  grantor,N:)r  defining  the  time  at 
which  the  deed  shall  become  effective,  though  in  this  resjiect 
they  are  variant,  occasionally  partaking  of  a  contingent 
remainder.  If  otherwise  sulliciont  a  conveyance  of  land  in 
fee  to  take  effect  at  a  future  time  is  valid,  and  will  vest  the 

•  2  Hill.  Al.ri.l^'.  :JI7.  v.    Ilanly,    22    I'iclc.    (Miuss.)    880; 
»  2  Hill.    Aliriilg.    318;  4  Ci-uiso      SiiauMin;,' r.  (Jrc;:,';;,  4  (Ja.  HI. 

Dig.  81.  »  Sic  Cliaii.IIrr  I'.    Cliaiull.T,   55 

»  LesHoe  of  Rtntly  v.  Di-fmcst,  2  Cal.  207:  Al)l)ott  v.  Holway,  Atlm'r, 

Ohio,  221;  Linker  r.  Loii;,',  (51  N.  C.  72  Me.  21(8;    SliackK'ton  v.  .Si'l)n««, 

2«fl.  60  111.  01«;    K.'iit   V.  Atlaiilii;,  iJo 

♦  2  Hla'k.  Com.  ;i:iH;  JackHon  v.  Laiiio  Co.,  8  I{.  I.  ;JU5;  liohuii  v. 
McKenny,  3  Wend.  233;  lirewbter  Dolion,  78  Ky.  408. 


24G  ABSTRACTS    OF    TITLE. 

foe  intlio  grantee  according  to  the  terms  of  the  conveyance.' 
In  the  abstract  there  shoukl  be  shown:  the  words  of  izrant, 
and  if  material  tlie  words  of  limitation,  as  tendinjr  to  indi- 
cate  more  fully  the  nature  of  the  granted  estate;  tlic  proviso 
limiting  or  restricting  the  use  of  the  estate  or  ex])lainiiig  its 
scope;  the  habendum,  with  only  slight  abridgment,  this  be- 
ing one  of  the  fcAV  cases  in  which  it  becomes  material  and 
important;  and  the  covenants,  or  such  of  them  as  may 
appear  material.  A  deed  of  this  character,  taken  from  the 
files,  will  serve  more  fully  to  illustrate  the  matter.  A 
grantor  seeks  to  convey  the  fee,  to  vest  only  in  the  event 
of  his  death  before  that  of  the  grantee,  as  extreme  a 
case  as  can  be  well  imagined.  Omitting  the  preliminary 
parts,  which  would  be  in  the  usual  form  already  shown,  ex- 
cept that  the  consideration  and  conveying  clauses  are  set 
forth  more  fully,  the  abstract  after  the  description  would 
read: 

Provided  {it  is  stated)  "  that  tins  deed  is  not  to  tahe  effect 
and  operate'  as  a  conveyance  until  my  decease^  and  in  case 
I  shall  survive  my  said  wife,  this  deed  is  not  to  he  operative 
as  a  conveyance,  it  being  the  sole  purpose  and  object  of  this 
deed  to  maTce  a  provision  for  the  support  of  my  said  wife  if 
she  shall  survive  me,  and  if  she  shall  survive  me,  then  and 
in  that  event  only,  this  deed  shall  be  operative  to  convey  to 
my  said  wife  said  premises  in  fee  simple.  Neither  I,  the 
grantor,  nor  Clarissa  B.  Abbott,  shall  convey  the  above 
premises  while  we  both  live,  without  our  mutual  consent.  If 
I,  the  grantor,  shall  abandon  or  desert  my  said  wife,  then  she 
shall  have  the  sole  use  and  incorne  and  control  of  said  prem- 
ises during  her  Hfe^ 

To  have  and  to  hold,  etc.,  "  to  the  said  Clarissa  B.,  if  she 
shall  survive  me,  her  heirs  and  assigns,  to  their  use  and 
beh  oof  forever.''^ 

Said  grantor  covenants  "  that  I  have  good  right  to  sell  and 
convey  the  same  to  tJie  said  Clarissa  B.,  if  she  shall  survive 
me,  to  hold  as  aforesaid  at  my  decease^''  and  that  he,  hi^ 

'  Furgusen  v.  !Mason,  60  "Wis.  377. 


CON^'EYAXCES   BY    INDIVIDUALS.  247 

/ieirs,  etc.,  unll  tcarm?ii  and    defend    the   same    ^Uo    said 
Clarissa  B.  if  she  shall  survive  meP 

Under  the  statutes  wow  in  force  in  a  majority  of  tlie 
States,  the  owner  of  real  estate  may  convey  in  the  manner 
prescribed,  any  part  or  portion  of  his  estate  as  he  and  his 
grantee  may  agree,  subject  only  to  those  restrictions  Avhich 
the  law  imposes  as  required  by  public  policy,  but  relieved 
from  the  technical  doctrines  wliich  arose  out  of  ancient 
feudal  tenures,  and  all  the  restrictive  elfect  which  they  had 
u])on  alienations.  "  The  mere  technicalities  of  ancient 
law,"  says  Barrows,  J.,  "  are  dispensed  Avith  ujion  compli- 
ance with  statute  requirements.  The  acknowledgment  and 
recording  are  accepted  in  place  of  livery  of  seizin,  and  it  is 
competent  to  fix  such  time  in  the  future  as  the  ])arties  mav 
agree  upon  as  the  time  when  the  estate  of  the  grantee  shall 
'commence.  Xo  more  necessity  for  limiting  one  estate 
upon  another,  or  for  having  an  estate,  of  some  sort,  pass 
immediately  to  the  grantee  in  opposition  to  the  expressed 
intention  of  the  parties.  The  feoffment  is  to  be  regarded 
as  taking  ])lace,  and  the  livery  of  seizin  as  occurring,  at 
the  time  fixed  in  the  instrument,  and  the  acknowledgment 
and  recording  are  to  be  considered  as  giving  the  necessary 
publicity  which  was  sought  in  the  ancient  ceremony."  ' 

§  19.  Conveyances  of  Special  Interests  and  Qualified 
Estates.  The  terms  "  wai'ranty "  and  "  quitclaim "  ai"e 
used  in  pre]iaring  the  synopsis  of  deeds,  only  when  the  in- 
struments to  which  they  are  apjilied  juirport  to  be  al)sohite 
conveyances  of  tlie  entire  interest  of  the  grantor.  In  the 
fonner,  wlien  containing  the  covenants  which  run  with  the 
land;  in  tlic  latter,  when  conveying  l)ut  a  naked  inteiest, 
uncouph'd  with  C(jvenants  or  conditions.  In  both  of  these 
cases  the  legal  im|)ort  may  safely  lie  deteniiiiird  b\  the 
examiner,  who  may  indicate  same;  by  the  n;inie  he  applies 
to  the  conveyanci*;  in  all  other  cases  he  should  simply  ns(^ 
the  generic  word  "deed,"'  ;ind  setting  out  the  ni;ileri;il  and 

'  AlilK.tt   r.  Holway,  A<liii'r,  72  .Mc   L't)'^;  Kiiil   v.  .Allmilic,  li.l,;iiiio 
Co.,  «  K.  I.  UOO. 


2-iS  ABSTRACTS    OF   TITLE. 

operative  parts  should  leave  the  question  of  tla-ir  legal  im- 
port and  etlect  to  counsel.  This  class  of  conveyances  com- 
prises deeds  of  equitable  interests,  contingent  and  vested  re- 
nuunders,  reversions,  all  conveyances  not  in  2^t'(-'S€nti,  and 
may  include  estates  for  life  or  3'ears,  as  well  as  incor})oreal 
hereditaments,'  easements  and  the  like.  Greater  particu- 
larity is  required  in  their  treatment  than  in  the  other  classes 
of  conveyances  heretofore  mentioned,  as  their  validity  and 
elTect  do  not  depend  so  much  on  general  principles,  as  in 
case  of  warranties  and  quitclaims,  as  upon  the  a])[)lication 
of  special  provisions  to  particular  facts.  The  operative 
words  of  conveyance,  and  frequently''  those  of  purchase  or 
limitation,  become  material  in  determining  the  nature  and 
extent  of  the  estate  granted,  while  the  habendum,  or  some 
portion  thereof,  must  also  be  resorted  to  to  explain  or  fur- 
ther define  the  grant  made  in  the  premises.  The  conditions 
of  the  grant  or  restraints  upon  its  use  or  enjoyment  must 
farther  be  observed,  and  where  covenants  are  inserted,  a 
general  synopsis  of  same,  or  if  creating  a  repugnancy,  a 
rather  full  transcription.  It  is  a  generally  recognized  prin- 
ciple, that  where  the  granting  chiuse  does  not  define  the 
nature  of  the  estate  conveyed,  and  is  not  followed  by  lan- 
guage assuming  to  supply  what  is  thus  omitted,  the  estate 
convej'ed  is  a  fee,  or  whatever  title  the  grantor  jiossessed  at 
the  time,  and  this  is  the  general  statutory  doctrine;  but 
where  the  habendum  describes  what  estate  passes  it  be- 
comes efficient  to  declare  the  intention,  and  will  rebut  any 
implication  which  would  otherwise  arise  from  the  omis- 
sions of  the  premises.  The  habendum  in  such  case  does  not 
contravene  the  rule  that  nothing  can  be  limited  thereby, 
nor  does  it  contradict  the  language  of  the  granting  clause, 

'  A  grantee  may  take  a  fee  in  porcal  hereditament  he  can  only 
any  kind  of  hereditament,  either  be  said  to  be  seized  as  of  fee,  and 
corjioreal  or  incoqioreal;  but  there  not  in  his  demesne,  which  means 
is  this  distinction  between  the  two  property  in  the  thing  itself:  Wig- 
species;  that  a  man  is  seized  in  his  gins  Ferry  Co.  v.  O.  &  M.  Eailwaj 
demesne  as  of  fee  of  a  coi-poreal  Co.,  9-i  111.  83. 
hereditament,  while  of  an  incor- 


CON^'EYANCES    BY    INDIVIDUALS.  219 

bni  simply  supplies  what  is  there  omitted,  and  removes  all 
necessity  for  resorting  to  imj>lication  to  ascertain  the  inten- 
tion of  the  parties.'  Neither  can  the  covenants  enlarge  the 
grant,  "whatever  be  their  tenor,^  yet  they,  like  the  haben- 
dum, ma}"  serve  to  more  fully  explain  the  intention  of  the 
l)art:os,  as  will  be  seen  from  some  of  the  examples  given  in 
this  chapter,  and  courts  arc  ever  more  inclined  to  look  to 
the  whole  instrument  for  a  proper  construction,  than  to 
isolated  and  detached  portions  as  formerly/ 

§  2J.  The  Same — Coutiiiued.  It  is  impossible  to  give 
more  than  a  reference  to  the  large  class  of  conveyances  that 
come  within  the  scope  of  this  section,  but  it  is  believed  that 
the  examiner  will  readily  recognize  such  when  met  with  in 
actuid  practice.  A  common  occurrence  in  deeds  and  ^vills 
will  be  found  in  the  efforts  to  secure  to  married  women  and 
their  children  the  use  and  ownership  of  land  freed  from  the 
dominion  and  control  uf  the  husband  and  father,  and  such 
conveyances  give  rise  to  many  subtle  questions  in  their  con- 
struction. A  conveyance  of  land  direct!}"  to  a  woman  and 
her  children,  without  other  words,  she  then  having  chiUhen, 
would  vest  the  title  in  her  and  her  children  equall}",'  and  it 
seems  no  title  will  vest  at  law  in  children  thereafter  born, 
although  the  instrument  may  declare  the  grantor's  intent 
that  the  after-born  children  shall  take.'  But  such  cliihhrn 
would  take  as  beneliciaries  under  a  trust  by  deed,"  or  will,' 
and  i)erhaps  the  living  grantees  under  such  a  deed  expressly 
j)roviding  for  after-born  children  would  hold  the  legal  title 
interest  for  themselves  and  such  cliildren."     A  very  slight 

'  Rii^i^n  V.  Love,  72  111.  553.  2  Irrd.  (N.  C.)  277;  but  see,  B:irl.er 

«Lainb  v.  Wakelield,  1  Sawyor,  v.  llanis,  15  Weiul.  (N.  Y.)  015. 

251.  "(jiiay  v.  llayctj, 7 Uuiiiith.('lVim.) 

*Saun(lf'rB    v.   Ilanw,  4-1    N.  Y.  58H. 

353;  r'ailiiiH  v.  Lavilk',  44  Vt.  2;J(l.  'Tuni.r  v.  Ivie,  5  Ileisk.  (Tiim.) 

*Hi<kiii:m    V.    C^uinn,    0    Yt-rg.  222. 

(Tt-nu.)  Wi;   Ix>yIt'SH  v.  Hlackshcar,  "llolmos  r.  Jjirrot  Moon,  7  Hi-isk. 

43  Cia.   327;   liarlxr   v.   Hariw,   15  (T.-tin.)  5(»«;  JiickHoii   v.   SiKwm,  3 

Wc-nil.  (N.  Y.)  G15.  JuIiiih.  Chh.  321;  Schumiiurt  v.  Dil- 

••  Lillar.l     r.    Uiick.rs,    ft     Y»tk.  lar.l,  55  Miss.  438. 
(Ti-mi  ptil;   Ni'wsom  v.  Tliuiiipsnu, 


250  ABSTRACTS    OF   TITLE. 

indication  of  an  intention  that  the  children  shall  not  taicc 
jointly  with  the  mother  will  suffice  to  give  the  estate  to  the 
motlier  for  life,  with  remainder  to  the  children,  as  well  in 
the  case  of  a  deed  '  as  of  a  will; '  and  even  though  the  woman 
shouUl  have  no  children  then  livin^^,  or  if  she  were  un- 
married, there  would  yet  be  such  a  contingent  remainder  in 
favor  of  any  children  she  might  have,  that  slie  wo  Id  have 
no  power  by  a  conveyance  before  issue  to  defeat  tins  con- 
tingent remainder  in  favor  of  such  issue/  If  the  convey- 
ance be  expressly  to  the  mother  for  life,  and  after  her 
death  to  her  children,  the  children  born  during  the  life  estate 
would  take,  the  remainder  vesting  as  they  came  into  being, 
and  opening  to  let  in  those  born  afterward,"  In  all  these 
cases,  aside  from  the  fine  points  of  construction  to  decide 
the  ownership  of  the  fee,  collateral  questions  arising  from 
the  doctrine  of  dower  and  curtesy  present  themselves  accord- 
ing as  the  statutory  law  of  the  State  may  be;  the  collateral 
questions  being  dependent  on  the  construction  of  the  main 
question  of  the  nature  and  quality  of  the  estate  conveyed. 
The  intention  of  the  grantor  being  gathered  from  tlie  in- 
strument, it  is  recommended  that  all  the  technical  Avords  of 
conveyance,  limitation  and  definition,  whetlicr  in  ])rennses, 
habendum  or  covenants,  be  set  out  fully  and  without  re- 
serve, and  repugnancies  or  variations  noted  as  heretofore 
shown.  In  the  instances  above  cited,  and  generally  when 
the  instrument  purports  to  convey  more  than  one  estate,  or 
where  the  estate  conveyed  is  defeasible  from  any  cause,  the 
premises  and  habendum  must  be  construed  together  and 
should  be  properly  presented  for  that  purpose;  as,  in  a  case 
where  land  is  conveyed  to  A,  to  hold  until  his  son  B  shall  be- 
come of  age,  and  then  to  B  in  fee;  or  if  B  shall  die  before  that 
event,  then  to  A  in  fee.  In  such  a  case  the  premises  and 
habendum  and  all  operative  \vords  become  material  and 
must  be  shown,  thus  : 

'  Moore  u.  Simmons,  2  Heap,  506.  '•Beecher  v.  Hicks,  12  Rtportor, 

» Bunch  r.  Hardy,  3  Lea  (Tenn.),      123;  Blaii-  v.   Vanblarcum,  71  111. 

543.  200. 

*  Frazer  v.  Sup.  of  Peoria,  74  111. 

282. 


CONVEYANCES    BY    INDIVIDUALS.  251 

Grants,  hargains,  sells  and  conveys  to  A,  and  his  son  B, 
thefoUoic'nig  described  land,  etc. 

To  have  and  to  hold  *  *  *  unto  said  A,  for  and  dur- 
iyig  the  minority  of  his  son  B,  and  until  said  B  shall  arrive 
atthe  age  of  ticei^y-one  years;  and  unto  said  B,  his  hei)'s, 
etc.,  *  *  *  ill  case  he  shall  a7'rive  at  the  full  age  of  twenty- 
one  years;  hut  in  case  the  said  B  shall  decease  before  he 
arrives  at  the  age  of  twenty-one  ycars^  then  unto  said  A,  his 
heirs,  ei€. 

{Note  covenants  if  material.) 

As  a  general  rule,  contingent  interests  are  assignable,  de- 
visable and  descendible  the  same  as  the  vested  interests.' 

§  21.  Kestrictive  and  Coiulitioiial  Coiive.vaiices.  Tlie 
subject  of  restrictive  clauses  and  conditions  in  deeds  and 
other  conveyances  has  already  been  alluded  to,  and  need  not 
be  extensively  discussed  here.  As  a  rule,  any  condition 
Avhich  is  repugnant  to  the  estate  granted  will  be  invalid,  but 
it  has  been  held  that  the  owner  of  property  has  a  right  to 
dis})o.sc  of  it  with  a  limited  restriction  on  its  use,  however 
much  the  restriction  may  effect  the  value  or  the  nature  of 
the  estate.  licpugnant  conditions  are  those  which  tend  to 
the  utter  subversion  of  the  estate;  such  as  prohibit  entirely 
the  alienation  or  use  of  the  ])roperty.  Conditions  whicli 
])rohibit  its  alienation  to  particular  persons,  or  for  a  ]iiiiit( d 
jteriod,  or  its  subjecti(m  to  particular  uses,  are  not  subver- 
sive of  the  estate.  They  do  not  destroy  or  limit  its  alienal)]e 
or  inlieritable  cliaracter,  and  the  reports  are  full  of  eases 
where  conditions  im])osing  restrictions  U])on  uses  to  which 
]>roperty  conveyed  in  fee  may  be  subjected,  have  been  upheld. 
In  this  way  .slaugliter  houses,  soap  factories,  saloons,  distill- 
eries, livery  stables,  tanneries,  and  machine  shojis  have  in  a 
multitu<le  of  instances,  been  excluded  lif>m  ]iarti<ular  local- 
ities, which,  thus  freed  from  unpleasant  sights,  noxious 
vapors,  or  disturbing  noises,  have  become  desirabh;  as  jtlaees 
for  residences  of  families.'     That  such  a  purpose  is  a  legili- 

'Kenyon  v.  S<v',  94  N.  Y.  rm.  Kmi  C.  S.  nr,;    I'luinl.  r    TnM.s.  11 

•Cowell  V.  C>jl<jru(Ju  SpriiigB  Co.,       N.  Y.    -112;   CulliiiB    r.    .Mun  y,  S.T 


252  ABSTRACTS    OF    TITLE. 

mate  one,  and  may  be  carried  out  consistently  Avitli  tlie  rules 
of  law,  by  reasonable  and  ])ro])er  covenants,  conditions,  or 
restrictions,  can  not  be  doubted. 

In  abstractinu;  deeds  of  this  character,  the  attention  of 
the  examiiier  should  be  ]iartieuhiily  directed  to  the  woi-ds 
of  grant,  the  habendmn,  the  consi(h'ration  annexed  to  the 
o'rant,  and  the  covenants.  Conditi<jns  restrictin*c  the  use  of 
the  premises  conveyed  are  usually  conditions  subsequent, 
and  often  provide  for  a  revci'sion  of  the  title  u])on  their 
b.'oach,  and  u])on  which  the  grantor  may  recover  in  eject- 
ment.' The  form  for  creating  a  condition  in  a  grant  or  deed, 
as  laid  down  by  all  writers  on  the  subject,  is  "  provided  al- 
ways, and  this  deed  is  u])on  the  cx])ress  condition,"  "  and 
these  expressions  have  always  been  held  suthcient  to  create  an 
estate  upon  condition,  unless  there  is  something  in  the  deed 
to  negative  this  idea.  Inasmuch  as  estates  u])on  condition 
working  forfeiture  are  odious,*  the  courts  have  generally 
laid  hold  of  any  plausible  feature  to  sustain  them.  Such 
conditions  are  not  favored,  and  must  be  construed  strictly,* 
and  will  under  no  circumstances,  be  enforced  further 
than  may  be  absolutely  required,  and  so  strong  is  the 
principle  engrafted  in  the  law^  that  courts  of  equity  will  sel- 
dom lend  their  aid  to  divest  an  estate  for  breach  of  a  con- 
dition.' The  fact  that  an  estate  is  subject  to  condition  does 
not  in  any  way  affect  its  capacity  for  alienation,  or  of  being 
devised,  or  descending  in  the  same  manner  as  an  indefeasi- 
ble estate,  but  the  purchaser,  devisee,  or  heir,  takes  it  sub- 
ject to  whatever  conditions  may  be  annexed   to   it."     The 

Conn.  2-12;Speriyu.  Pound,  5  Oliio,  389;Hoyt  v.  Kimball,  49  N.  II.  027; 

189;  Gray  v.  Blanchard,    8    Pick.  4  Kent    Com.  130;  "Woodwoith  v. 

284;  Clark  v.  Martin,  94  Pa.  St.  289.  Paine,  74  N.  Y.  196. 

'  Plumb  V.  Tubbs,  41   N.  Y.   442.  '  Warner  v.   Bennett,   31   Conn. 

«4  Kent's  Com.  122; 2  Wash.  Real  478;  Ins.  Co.  v.  Walsh,  54  111.   164; 

Prop.  3.  Pahner  v.  Ford,  70  III.   369;   Wing 

3 Warner  v.  Bennett,    31   Conn.  v.  Railey,  14    Mich.  83;  Smith    v. 

478;  Pahiier  v.   Ford,  70  111.  369;  Jewett,  40  N.  H.  530. 

Craig  r.  Wells,  11  N.  Y.  315.  « Taylor  v.    Sutton,   15  Ga.    103; 

••Gadberry  r.  Sheppard,  27  Miss.  Wilson  v.  Wilson,  38  ]\Ie.   18;  Un- 

203;  Bradstreet  v.  Clark,  21   Pick.  derhill  v.  R.  R.  Co.,  20  Barb.  455. 


CONTETAXCES    BY    IXBIVIDL'ALS.  253 

estate  so  granted  is  frequently  called  a  base  or  qnalified  fee, 
being  such  as  has  a  qualification  subjoined  thereto,  and 
which  must  be  determined  whenever  the  qualification  an- 
nexed to  it  is  at  an  end.  It  is  a  fee,  because  it  may  possil)ly 
endure  forever;  and  it  is  base  or  qualified,  because  its  dura- 
tion depends  upon  collateral  circumstances  which  qualify 
and  debase  the  purity  of  the  donation.' 

§  22.  Proliibited  Conveyances — Adverse  Seizin.  "From 
an  early  date,"'  says  Washburn,  "the  polic}^  of  t)ie  law  has 
not  admitted  of  the  conveyance,  by  any  one,  of  a  title  to 
land  which  is  in  the  adverse  seizin  and  possession  of  another. 
This  is  considered,  not  as  passing  a  title,  but  as  the  transfer 
of  a  right  of  action  In  violation  of  the  early  laws  against 
champerty  and  maintenance,  and  therefore,  not  to  be  sus- 
tained by  the  courts."  '  This  doctrine  was  long  maintained 
in  this  country  and  still  prevails  to  a  limited  extent  in  some 
of  the  older  States,'  but  in  the  TTest  it  has  been  swept  away 
by  ex])ress  statutory  enactments,  and  no  conveyance  is  void 
because  at  the  time  of  its  execution  or  delivery,  the  land  in 
question  is  in  the  possession  of  another  who  holds  by  a  title 
adverse  to  that  of  the  grantor.*  Where  such  doctrine  still 
prevails,  an  entry  on  tlie  land  and  delivery  there,  will  evade 
the  letter  of  tlie  law  and  make  good  the  deed,'  The 
abstract  will  sliow  l)oth  titles,  provided  they  are  each  deduc- 
ible  of  record,  and  questions  of  this  kind  must  be  decided 
by  the  application  of  local  law  to  the  admitted  or  kn()^vu 
circumstances.  At  most,  the  principle  will  apply  only  as  to 
the  ))ei'Son  holding  the  adverse  title  at  the  time  of  theexecu- 

'  Wigg^ins  Ft-rry  Co.  v.  O.  &  ^I.  actual  adverse  jtossossion,  may  sell 

Ry.  Co.,  94  111.  83.  and  convey  the  same  as  though  in 

*  3  Wash.  Real  Prop.  329  (4th  Ed).  the  actual  jKissission.  and  his  d'-d 

*  Sohier  I'.  Coflln,  101  Mjuss.  179;  will  give  the  grantee  thesame  right 
JoncH  I'.  Monroe,  32  Ga.  IHS.  of  recovery  in  ejectment  as  if  tiio 

*  Hall  r.  Af»hhy,9Oliio,90:  Short-  grantor  hail  been  in  the  actual  pas- 
all  r.  Ilinkli'V,  31  III.  219;  Crane u.  session  wIhmi  he  conveyed:  Clii- 
Re.-«l<'r.  21  Mich.  S2;  Stewart  v.  Mc-  cago  v.  Vulcan  Iron  Works,  93  111. 
Sweeny,  14  Wis.  471.    Under  these  222. 

8t<'itut4-H  any  one  claiming  titlo  to  '  Farwell  v.  Rogers,  99  ^Iiuw.  30; 

land  although  out  of  p(»fis«-asion,  and      Warner  v.  Hull,  13  Met.  4. 
notwitliHtiindiiig  there  may  he  an 


25-4  ABSTRACTS    OF   TITI.E. 

tioii  and  tlclivory  of  the  deed,  or  those  clahning  by,  tlirough 
or  luuk'i'  him,  and  as  to  all  others  the  deed  would  be  valid 
and  eirectual.' 

§  23.  Continued — Frandnlont  Conveyances.  AVliat  are 
known  as  '*  fraudulent  conveyances,"  or  such  as  are  made 
with  intent  to  hinder  and  delay  creditors,  though  formal  in 
all  respects,  and  valid  and  effectual  between  the  parties,  are 
])rohil)ited  by  law  and  void  to  a  certain  extent.''  Depending 
largely  upon  intent,  the  record  furnishes  few  clues  to  its  real 
character,  and  such  a  deed  will  usually  pass  unquestioned 
when  found  upon  the  abstract.  Want  of  consideration  may 
be  suihcient  to  raise  an  inquiry,  yet,  as  has  been  seen,  this 
of  itself  does  not  denote  bad  faith,  nor  is  a  consideration  es- 
sential to  the  vesting  of  the  title,  and  where  the  controlling 
motive  in  making  the  deed  was  to  defeat  creditors,  a  full 
consideration  is  usually  expressed.  The  invalidity  of  a  deed 
is  usually  the  result  of  a  decision  of  a  court,  and  whatever  in- 
ternal evidence  it  may  possess  will  rarely  decide  its  character. 
The  question  of  fraudulent  intent,  as  a  rule,  is  confined  to 
the  immediate  parties  and  does  not  extend  to  the  second 
grantee,  who,  if  acting  in  good  faith  and  without  notice, 
will  take  the  property,  and  the  full  title,  purged  of  its  for- 
mer taint."  Such  a  purchaser  is  a  favorite  in  the  eyes  of  a 
court  of  equity.* 

§  24.  Conveyances  Subject  to  Incumbrance.  Where 
land  is  conveyed  subject  to  a  mortgage,  a  promise  to  pay  the 

'  Edwards  v.   Rays,   18  "Vt.  473;  stacle  in  the  way  of  the  former 

Wade  V.  Lindsey,  6  Met.  407;  Bet-  proprietors  recovering  possession, 

sey  r.  Torrance,  34  Miss.  138;   Far-  ^Dy^j.  y_  Homer,   22   Pick.    258; 

nnm  v.   Peterson,   111  Mass.    151.  Dunhip  v.  Dunlap,    10  Ohio,    162; 

The  EngUsh  statutes  upon  which  Harvey  v.  Varney,  98    3Iass.   118; 

this  doctrine  was  founded,   grew  Horner  v.  Zuximerman.  45  111.  14; 

out  of  peculiar  exigencies  entirely  Stevens  v.  Harrow,  26  Iowa,  458. 

foreign  to  oiir  condition  and  habits.  ^  Jackson  v.  Henrj',  10  Johns.  185 ; 

Tliey  were  passed  at  the  close  of  Wright  v.  Howell,  35  Iowa,  292;  1 

revolutions,  when  the  property  of  Storj'   Eq.  Jur.   §  434;    George  v. 

the  kingdom  having  to  a  great  ex-  Kimball,  24  Pick.  238;  4  Kent  Com. 

tent  changed  hands,  it  became  the  (11th  Ed.)  464. 

intt-rest  of  those  who  succeeded  to  ■*  1  Story  Eq.  Jur.  §  434. 
power  to  place  every  possible  ob- 


CONVEYANCES    BY    INT:)IVIDLTALS.  255 

debt  thus  secured  can  not  be  inferred  from  tlie  acceptance 
of  the  deed,'  even  though  made  a  part  of  the  consideration.'' 
In  the  absence  of  other  evidence,  such  a  deed  shows  that  the 
grantee  merely  purchased  the  equity  of  redemption.'  But  if 
a  grantee  takes  a  deed,  containing  a  stipuhition  that  the  land  is 
subject  to  a  mortgage,  which  the  grantee  assumes  or  agrees  to 
pay,  a  duty  is  impi  se  1  on  him  by  the  acceptance,  and  the  law  im- 
plies a  promise  to  perform  it.*  This  of  course,  only  applies 
where  there  has  been  an  acceptance  by  the  grantee,  for  the 
mere  fact  of  the  execution  and  acknowledo-ment  of  a  deed  of 
incumbered  property,  with  a  clause  therein  that  the  grantee 
should  pay  the  mortgage  indebtedness,  and  its  being  recorded, 
is  not  sufficient  in  itself,  to  create  a  personal  lial)ility  on 
the  part  of  such  grantee  unless  he  has  assented  to  such 
clause,  yet  as  we  have  seen,  by  his  acceptance  of  the  deed 
his  assent  to  all  it  contains  may  be  inferred.' 

The  examiner  should  observe  great  particularity,  there- 
fore, in  the  rendering  of  clauses  of  conveyances  relating  to 
subsisting  claims  or  incumbrances,  for  the  purchaser  is 
charged  with  notice  of  all  recitals  of  this  character,  and  is 
bound  thereb}^  even  though  sucli  incumbrance  fails  to 
ap]iear  of  record."  Though  the  conveyance  of  projiorty  sub- 
ject to  mortgage,  unless  expressly  stated,  imposes  no  per- 
sonal lial)ility  on  the  grantee,  it  raises  the  presumption  that 
the  purchaser  buys  tlie  property  to  the  extent  stated,  and 
takes  his  chances  of  realizing  out  of  the  jiropcrty  enough, 
over  and  above  the  mortgage,  to  indemnify  him  for  his 
advance  of  purchase  mone3\  The  fair  inference  is  that  tlic 
purcliascr  does  not  pay  tlie  vendor  the  full  value  of  the 
l)roperty,  but  that  the  amount  of  the  mortgage  debt  is  re- 
served in  his  hands  as  so  much  jnirchase  money  for  the 
purpose  of  discharging  the  lien.     In  such  case  the  land  con- 

'Ins.  Co.  V.  Stc'Wiirt,  80  Pa.  St.  Furna.s  i'.  Durgin,  119  Masa.  500; 

89.  S<himu-kfr  v.  Silx  it.  IS  Kan.  104; 

»  Fiske  V.  Tolman,   124  Mass.  2rtl.  Mill.r  r.  Tlir.mpson.  :J4  Midi.  10. 
C<jniparfc  Twichell  v.   Mt-ars,  6  lie-  '  Thompson  t'.  DcaiLorn,  1(»7  III. 

IKjrt«-r.  40.  87. 

'Stroii;?  V.  fonvcrHn.  8  Allin,  .V)?.  *  Wliito  v.  Fost^-r,  \0'2  Mii-w.  375; 

*  I'ikii  V.    lirown,   7    Cuhli.    I'M;  Vaugluui  r.  UrocT,  o^  Tc.k.  530. 


250  ABSTRACTS   OF    TITLE. 

veyed  is  as  elTectually  cliargcd  Avilh  tlie  amount  of  tlio 
m(»rti:-age  as  if  the  purchaser  had  ex[)ressly  assumed  its  ])ay- 
nient.'  As  between  the  vendor  and  tlie  purchaser  of  the 
equity  of  redemption,  tlie  hind  is  the  primary  fund  for  the 
li(jui(hition  of  tlie  incumbrance,'  but  wliere  the  payment  of 
an  outstanding  incumbrance,  created  by  the  grantor,  ex- 
jiressly  constitutes  part  of  the  purchase  money,  the  law  im- 
])lies  an  undertaking  by  the  purchaser  to  pay  it,  upon  which 
the  mortgagee  may  recover.' 

§  25.  Dedication  l)y  Deed.  Intent,  as  has  been  stated, 
is  the  vital  principle  of  dedication.  In  a  case  where  acts 
and  declarations  are  relied  on  to  show  such  intent,  to  be 
effectual  they  must  be  unmistakable  in  their  purpose  and 
decisive  in  their  character;  and  in  every  case  must  be  un- 
equivocally and  satisfactorily  proved.*  Wliere  the  deed 
relied  on  is  to  the  public  direct,  that  is,  to  the  State  or  any 
of  its  municipal  agencies,  no  question  as  to  the  intent  can 
usually  arise;  but  when  the  dedicatory  matter  forms  a  re- 
cital or  agreement  in  a  deed  between  individuals,  the  rule 
above  stated  becomes  efficient  to  determine  its  import.  In 
ascertaining  the  intent  of  the  parties  in  tlie  latter  case,  it  is 
a  fundamental  rule  of  construction,  that  the  lanffuao^e  em- 
ployed  is  to  be  read  in  the  light  afforded  by  the  subject- 
matter  and  the  surrounding  circumstances,'  Avhile  every 
part  of  the  deed  is  admissible  to  declare  the  meaning  of 
certain  passages,  and  such  construction  should  be  put  upon 
particular  words  as  will  best  answer  and  effectuate  the  ap- 
parent general  intention.'  The  recitals  indicative  of  dedica- 
tion are  best  shown  by  a  literal  transcription,  whenever  the 
circumstances  will  admit  of  such  treatment,  or  a  judicious 

'  Gale r.  Wilson,  30  Gratt.  (Va.)  "Harris'   case,   20    Gratt.    (Va.) 

166.  833;  Holdane  v.   Cold  Spring,   21 

»  Daniel  r.  Leitch,  13  Gratt.  (Va..)  N.  Y.  474;    Harding  v.  Hale,  61 

206;  Jumel  v.  Jimiel,  7  Paige,  595;  III.  192. 

Wedge  V.  Moore,  6  Gush.  8;  Eaton  '  Nash  v.  Towne,  5  Wall.  689. 

V.  Simmonds,  14  Pick.  98.  «  Talhott  v.  R.  R.  Co.,  31   Gratt. 

«  Twichell  v.  Mears,  6  Reporter,  (Va.)  085. 
40;  and  see  Garnsey  v.  Rogers,  47 
N.  Y.  233. 


CONVEYANCES    BY    INDIVIDUALS.  25  i 

conclensation  of  the  agreement,  covenants  and  declaration 
of  uses,  may  be  presented  when  that  woidd  not  be  desir- 
able; but  sufficient  of  the  language  employed  should  in  all 
cases  be  given  to  enable  counsel  to  determine  whether 
there  has  been  a  dedication  to  pul)lic  uses,  or  simplv  an  ad- 
justment of  the  claims  of  conflicting  parties,  resulting  in  a 
common  right  of  way  to  be  annexed  as  an  easement  to  the 
property  for  the  convenience  of  the  owners,  and  not  for  the 
accommodation  of  tlie  pul)]ic. 

§  26.  Resulting  Trusts.  It  is  a  general  rule  of  equity, 
that  if  the  purchase  money  of  land  is  paid  by  one  person, 
but  the  deed,  througli  any  accident,  mistake,  fi'aud,  or  other 
circumstances  contrary  to  the  real  intention  of  the  parties, 
is  taken  in  the  name  of  another,  tlie  trust  of  the  legal  estate 
results  to  him  who  advanced  the  money,'  and  this  circum- 
stance formerly  raised  many  questions  in  examinations  of 
title.  However,  of  late  years,  the  operation  of  this  rule  has 
been  greatly  restricted  by  statute,  andmany  of  the  questions 
which  formerly  perplexed  tlie  examiner  are  now  laid  at  rest. 
The  statute  has  not  abolished  trusts  arisinc^  or  resultinc:  bv 
implication  of  law,  but  in  a  majority  of  instances  has  declared 
the  legal  title  to  be  vested  in  the  alienee  named  in  the  deed, 
subject  to  the  claims  of  creditors  of  the  person  paying  the 
consideration,  in  whose  favor  a  trust  for  the  auKjunt  of  their 
claims  results,  but  even  such  trust  can  not  be  established  to 
defeat  or  prejudice  the  title  of  a  ])iirchaser  for  a  valuable 
consideration  and  without  notice  of  such  trust."  Wherever 
the  foregoing  law  obtains,  and  it  is  now  very  general,  but 
little  ililficulty  will  be  experienced  from  this  class  of  undis- 
closed trusts,  and  until  their  eiliciency  has  been  declare(|  hv 

'Case  w.  Co<l<linf,',  as   Tal.    101;  Harvey  r.  LclLittcr.  IH   ]Miss.    IC. 

Fn-*l<Tick    r.     Hujik,    Tj  Ncv.     :5S!»;  '  Sc- li.  S.  Wis.. '("Imp.    0(5;  (J.-n. 

Fl.-min^  r.     M<Hal.',    47    III.    l'S',>;  Stat.  Minn..  ( 'liai..  JM;  ( ■(.inp.  Laws 

I)ry.l.n  r.  Haiiway,    'M    Md.    2r>\;  Mi<  li.  );  :»(i:{7:  K.  S.N.  Y.  S^r.l;ron- 

Malloi-y  V.    Mallory,  .'J  Hii.sli   (Ky.),  milt  Martin  r.  Martin.  r»  Hush  (Ky.). 

•tfH;  Jolinvm  r.  gnnrlt-H,  KJ  .Mn.  4',':J;  47;  Dinfee  v.  Pavitt,  14  .Minn.  4\.'4; 

Nixr.n'H  Aiipeal,    0:i    Pa.    St.    '21'.);  ImhImt  r.    F«>rli<'rt.    22   .Mi.li.    4.'»4; 

(•ami.U'll  V.  CaniplK-ll, 21  Mich.  IW;  Footu  r.  Pryunt,  47  N.  Y.  54 1. 

17 


258  ABSTRACTS    OF   TITLE. 

a  court  of  coin]iotont  juvisdiction  they  can  form  noappre^in- 
ble  factor  in  inakiiii;-  ii})  tlie  estimate  of  title.  A  neglect  to 
state  tlie  consideration  of  the  conveyance  or  acknowledire  its 
pjivment  was  formerly  considered  evidence  of  a  resultiiiir 
trust  in  favor  of  the  grantor  or  some  other  person  paying 
same,  but  this,  as  has  been  seen,  no  longer  prevails,  and  a  fail- 
ure to  recite  the  consideration  will  not  materially  atfect  the 
conveyance  though  it  may,  in  some  localities,  be  evidence  of 
the  vendor's  lien. 

§  27.  Ke-records  and  Duplicates.  Re-records  and  dui)li- 
cates  of  instruments  already  shown  in  present  or  former 
examinations,  if  they  show  no  variations,  ma}'^  be  passed 
with  the  briefest  notice.  Such  instruments  only  serve  to 
incumber  the  chain,  and  should  be  kept  out  of  sight  as  far 
as  possible. 

The  followins:  is  considered  a  sulHcient  notice: 


*  *         *         *         * 

*  *         *         -x-         * 

A  re-record  of   deed  re- 


Henry  3f.  Pachham,  hachelor,   "1      Deed. 

to  IJated^  etc. 

The  Illinois  Central  Railroad 

Company^  its  successors  and 

assigns. 

corded  Atig.  16,  1852,  as  Doc.  36,168,  in  Booh  101, 2Jage  580, 
as  appears  by  the  Recorder''s  certificate  appended  to  the 
record. 

In  case  of  duplicates,  say : 

Apparently  a  duplicate  of  lease  recorded  Sept.  5,  1882,  as 
Doc.  100,580,  in  Book  910,  page  550  {and  shown  as  No.  15 
of  this  examination). 

A  re-record,  of  course,  carries  its  own  internal  evidence, 
while  duplicates  can  only  be  classed  as  such  by  inference, 
yet  where  there  appears  an  exact  correspondence  of  parties, 
dates,  subject-matter,  as  well  as  identity  of  language,  it  is 
almost  impossible  that  the  examiner  shall  err  in  classing  it 
as  a  duplicate.  AVhen  the  originals  appear  in  the  same 
examination,   re-records   and  duplicates   should,  whenever 


CONVEYANCES    BY    INDITIDUALS.  250 

practicable,   immediately   follow  such   originals,   in  vrliich 
event  say : 

Apparently  a  duplicate  of  the  foregoing  instrument. 

"When  such  oriirinal  instruments  do  not  form  a  portion  of 
the  examination,  the  re-records  should  not  be  inserted  in  the 
chain  of  title,  but  are  best  shown  among  the  ap})endices, 
under  the  head  of  "  Ke-records,"  or  "  "We  also  find." 


CHAPTER  XVI. 


PARTICULAR  CLASSES  OF  INDIVIDUAL  CONVEYANCES. 


M- 

Marriage  settlements. 

§15, 

o 

Conveyances  to  husband  anel 

IG. 

wife. 

17. 

3. 

Conveyances   between    hus- 

band and  wife. 

18. 

4. 

Conveyances     b}'      married 
women. 

19. 

5. 

Effect  of  wife's  conveyance. 

20. 

6. 

Acknowledgment  of  deeds  by 

21. 

married  women. 

22. 

7. 

Release  of  dower. 

8. 

Joint  tenancies  and  tenancies 

23. 

in  common. 

24. 

9. 

Piu-tition  deeds. 

25. 

10. 

Partnership  conveyances. 

26. 

11. 

Corporate  conveyances. 

27. 

12. 

Statute  of  mortmain. 

28. 

13. 

Power  of  acquisition— User. 

14. 

Municipal  corporations. 

29. 

Conveyances  to  corporations. 

Conveyances  by  corporations. 

Continued  — Execution  — Ac- 
knowledgment. 

Record  of  seal. 

Conveyances  by  incorporated 
religious  societies. 

Heirs  at  law. 

Post  obit  convej'ances. 

Conveyances  by  delegated 
authority. 

Powers  of  attorney. 

Revocations. 

Substitution. 

Conveyances  in  trust. 

Declarations  of  trust. 

Removal  and  substitution  of 
trustees. 

Resignation  of  tiust. 


§1.  Marriage  Settlements.  It  was  at  one  time  doubted 
whether  any  interest  in  either  real  or  personal  property  could 
be  settled  to  the  exclusive  use  of  a  married  woman  without 
the  intervention  of  trustees;  but  lor  many  years  direct  con- 
veyances and  settlements  have  been  protected  in  equity  alike 
against  the  marital  rights  of  the  husl)an(l,  as  against  his  credit- 
ors.' Nor  is  it  at  all  material  whether  the  settlement  be  made 
by  a  stranger  or  by  the  husband  himself,  for  it  is  now  univer- 
sally held  that  a  settlement  by  a  husband,  on  his  wife,  made 
by  direct  conveyance  to  her,  will  be  enforced  in  the  same 
manner,  and  under  the  same  circumstances,  that  it  would  be 
if  made  by  a  stranger,  or  to  a  trustee  for  her  exclusive  use." 

'  2  story's  Eq.  Jur.  §  1380.  Sims  v.  Rickets,  35  Ind.  192  ;  Put- 

»  Jones  V.  Clifton,   6  Rep.    324;      nam  r.  Bicknell,  18  Wis.  351;  Bur- 

(260) 


PARTICULAK  CLASSES  OF  INDIVIDUAL  COXVEYAXCES.         201 

A  marriage  settlement  usually  conferred  upon  tlie  Avife 
only  the  use  of  the  property  during  her  natural  life,  or  for 
a  definite  period,  Avith  a  remainder  in  fee  to  lier  issue  or  other 
persons  designated;  but  marriage  settlements  proper  have 
fallen  into  general  disuse,  while  the  general  abolition  of  uses 
and  trusts,  and  removal  of  former  disabilities,  have  placed 
conveyances  for  this  purpose  upon  the  same  plane  and  sub- 
ject to  the  same  rules  as  other  conveyances  between  indi- 
viduals. 

Conveyances,  of  whatever  nature,  intended  as  a  settle- 
ment, should  be  shown  quite  fully,  particularly  the  granting 
.  clause  and  habendum,  together  with  any  sjK^cial  matter  by 
way  of  restriction,  for  the  power  of  disposition  may  be  re- 
stricted or  enlarged  by  the  terms  of  the  settlement;  and 
in  construing  these  terms,  the  iiitention  of  the  grantor,  as 
apparent  upon  a  fair  construction  of  the  instrument,  must 
govern,'  If  the  instrument  contains  any  express  or  imi)lied 
restrictions  upon  the  power  or  disjwsition,  either  as  to  the 
mode  of  conveyance,  or  ]Hirpose  for  which  it  may  be  con- 
veyed, she  can  convey  it  in  no  other  nuinner  and  for  no  other 
purpose,  while  if  it  contains  no  limitation  or  restrictions, 
ex])ress  or  implied,  she  may  convey  it  in  the  same  manner 
as  her  general  estate/ 

§  2.  Conveyances  to  Ilnsliand  and  ^Vife.  Tinder  tlu' 
common  law,  a  grant  to  a  man  and  his  wife  docs  not  con- 
stitute them  either  joint  tenants  or  t(Miants  in  common,  thev 
being  in  legal  contemplation  Init  one  p  Tson,  and  hence  un- 
able to  take  by  moieties.  Hoth  would  therefore  be  seized  of 
the  entirety;  neitlier  could  disj)ose  of  any  ])art  of  the 
estate  without  the  assent  of  the  otiier,  and  upon  tiio  death 
of  either,  the  whole  of  the  estate  would  remain  in  the  sur- 
vivor. This  rule  has  not  Ixfcn  materially  changed  by  stat- 
ute and  is  accepted  in  a  niajoiity  of  the  States.*     In  sucii 

dens  V.  AmporBo,  11  Mifh.  01 ;  WhI-  (Tcnn.)  101 ;  McC'lintic  v.  Oclu'ltrw, 

lin^'fonl  V.  All-n,  10  P.-t.  r,[)i.  4  W.  Vii.  iMU;    Kinini  v.  Wii|.p..rl. 

'YounK    r,     Yuunj;    7    (^)l<l\v.  10  Mo.  r>:!2. 

(T*'nn.)  4fll:Mcf'lu'«ii('y  t'.  Hrowii'B  » Arnold  r.  Arnohl,  30  Ind.  30.'); 

Ili-irs.  2.'>f;r:itt.  (Vii.):VJ3,  Hiiiiint,'way  r.  S<aU-H,   42   Mis«.   I; 

•Youn^    v.    Yoiiii;,',     7    (.'oldw.  Wiihlihiirn  i'.  liiirns,  :H  N.  J.  L  1J<; 


o.;o. 


ABSTKACTS    OF   TITLE. 


an  estate  there  can  be  no  partition,  as  neither  has  any  so]inrate 
interest.'  Jietween  them  there  is  but  one  owner,  and  tliat  is 
neither  the  one  nor  the  other,  but  both  toi^'ether.  The  common 
law  permitted  the  husband,  for  his  own  benefit,  durin*,^  tlieir 
joint  lives,  to  use,  possess  and  control  the  land  and  take  all 
the  profits  thereof,  and  even  to  mortgage  and  convey  an 
estate  to  continue  during  such  joint  lives,  though  he  could 
make  no  disposition  of  the  land  that  would  prejudice  the 
riiiht  of  the  wife  in  case  she  survived  him;  but  later 
authorities  hold  that,  from  the  peculiar  nature  of  this  estate, 
and  from  the  legal  relation  of  the  parties,  there  must  be 
unity  of  estate,  unity  of  possession,  unity  of  control,  and 
unity  in  conveying  and  incumbering  it;  and  it  necessarily 
and  logically  results  that  it  can  not  be  seized  and  sold  upon 
execution  for  the  separate  debts  of  either.' 

In  several  of  the  States  where  the  rule  formerly  prevailed, 
it  has  been  held  that  the  legal  unity  of  husband  and  wife 
has  been  broken  by  the  "  married  women's  "  acts,  and  that 
they  take  only  as  tenants  in  common.'  But  estates  -which 
had  vested  prior  to  the  acts  in  question  are  not  effected. 


MeCurdy  v.  Canning,  64  Pa.  St.  39; 
Fisher  v.  Provin,  25  Midi.  347;  Gar- 
ner V.  Jones,  52  Mo.  68;  Robinson  v. 
Eagle,  29  Ark.  202;  Marburg  v.  Cole, 
49  ]\Itl.  402;  Hulett  v.  Iiilow,  57  Ind. 
412;  Bertles  v.  Nunan,  92  N.  Y.  152; 
Meyers  v.  Reed,  17  Fed.  Rep.  40. 

'  In  some  of  the  Western  States 
there  is  a  peculiar  S5'stem  of  prop- 
erty rights  gi'owing  out  of  the 
marital  relation,  which,  while  it 
originated  in  the  civil  law  has  been 
bon-owed  directly  from  the  Spanish 
or  Mexican  law.  This  is  known  as 
the  docti'ine  of  comviunitij.  The 
underlying  principle  of  the  com- 
munity system  is  that  whatever  is 
acquired  by  the  joint  efforts  of 
husband  and  wife  shall  be  their 
common  property;  that  the  matri- 
monial relation  in   respect  to  the 


property  acquired  during  its  exist- 
ence is  in  fact  a  community,  of 
which  each  spouse  is  a  member, 
equally  contributing  by  his  or  her 
industry  to  its  prosperity,  and  pos- 
sessing an  equal  right  to  succeed  to 
the  property  after  dissolution  in 
case  of  one  surviving  the  other.  It 
extends  to  real  as  well  as  personal 
property  and  includes  everything, 
acquired  by  either  husband  or  wife 
during  the  marriage,  except  that 
which  is  acquii-ed  by  gift,  devise 
or  descent. 

2  Chandler  v.  Cheney,  37  Ind.  391; 
McDuff  V.  Beauchamp,  50  Miss.  531 ; 
Hulett  V.  Inlow,  57  Ind.  412. 

3  Hoffman  r.  Stigers,  28  Iowa,  302; 
Clark  V.  Clark,  56  N.  H.  105;  Coop- 
er V.  Cooper,  76  111.  57;  Walthall  t. 
Goree,  36  Ala.  728. 


PARTICULAR  CLASSES  OF  INDIVIDUAL  CONVEYANCES.         263 

changed  or  modified  by  them.  They  remove  no  disabilities 
and  confer  no  new  rights  in  relation  to  such  estates,  which 
can  only  be  conveyed  or  incumbered  by  the  joint  act  of 
both  parties,  while  the  survivor  takes  an  absolute  title  to  the 
whole  in  case  of  death,  as  heretofore.' 

The  legislation  of  the  States,  concerning  the  propertv 
rights  of  married  women,  has  been  very  uniform,  but  the 
judicial  construction  of  similar  statutes  has  been  variant  and 
contradictory.  In  some  instances,  as  has  been  observed, 
courts  have  decided  that  statutes  making  joint  grantees  ten- 
ants in  common,  and  giving  to  married  women  the  same 
rights  in  property  as  though  they  were  sole,  have  effectually 
destroyed  the  common  law  unity  of  husband  and  wife, 
and  made  them  substantially  separate  persons  for  all 
purposes;  but  in  a  majority  of  the  States  the  declared 
ellect  of  these  statutes  has  been  confined  to  their  ex- 
press terms  and  thej''  have  been  held  to  have  no  relation  to 
or  effect  upon  real  estate  conve\'ed  to  husband  and  wife 
jointly,  and  that,  notwithstanding  those  statutes,  they  still 
take  as  tenants  by  the  entirety.''  The  granting  clause  and 
habendum  may  serve  in  many  instances  to  determine  the 
nature  of  the  estate  granted,  and  it  is  advisable,  in  all  cases 
where  the  deed  purports  to  convey  to  husband  and  wife,  to 
set  out  sufficient  of  both  clauses  to  fully  disclose  the  nature 
of  the  grant. 

§  3.  Conveyances  Between  Hnsband  and  >Vife.  It  is 
now  well  settled  that  a  conveyance  by  a  husband  to  his  wife, 
without  the  intervention  of  a  third  person  or  trustee,  where 
suitable  and  meritorious,  and  not  in  fraud  of  creditors,  will 
be  upheld  in  equity,'  while  in  those  States  where  the  h^gal 
identity  of  husband  and  wife  is  no  longer  recogni/.ed,  such 
conveyance  may  be  good  at  law.*     "Where  the  ancient  doc- 

'IlarrcTtJ.  Wallncr,  80111.  197.  Sli<Tman  v.  Holland,  .VI  In.l.  T)?'^; 

'BertlcHr.  Nunan,  U2  N.  Y.  152;  ]^I(.iit/.    v.    Iloirinaii,   :5r>    111.  553; 

BaU-s    r.   .S«-<-lty,   46   I'a.    St.   2-JH;  H...  kc  (t  r.  Uaii.-y.  HOIll.  70. 

RiihiuHon  V,  Kagle,  29  Ark.  20:5:Mc-         Mkxikcr  v.  \Vt)rrill,  r,r,  Ca.  ;{:12. 

DulF  r.  Ikaiichainp,  50  .MLsa.  5;J1.  Dickwon   v.    Haiulal,   19  Kaii.  212: 

Mlunt  r.  JohriHon,  44  N,  Y.  27;  Partlay  v.  riant.  5(>.\la.  .'O'.j;  Kmif. 

Simmons   v.  Thonuis,  13  5Ii;^i.  ol;  man  r.  Whitney,  50  Miss.  KiU. 


20i  ABSTRACTS    OF   TITLE. 

trine  still  obtains,  a  deed  from  husband  to  wife,  Avitliout  the 
intervention  of  a  trustee,  is  void  at  law;  nor  can  a  court  of 
e(juity  regard  it  as  eiTecti^ally  to  transfer  the  legal  title, 
r.ut  where  such  deed  is  founded  uj)on  a  good  and  sufficient 
consideration,'  equity  will  enforce  it  accoi'ding  to  the  inten- 
tion of  the  parties,  where  the  same  can  be  done  without  prej- 
udice to  the  rights  of  others."  A  voluntary  conveyance, 
that  is,  a  conveyance  without  consideration,  is  a  fraud  upon 
the  creditors  of  the  husband,  even  in  the  absence  of  fraud- 
ulent intent,  and  this  is  especially  true  when  the  convey- 
ance leaves  the  husband  insolvent.^  As  a  rule,  conveyances 
of  this  class  call  for  close  scrutin}^,  and  frequently  for  in- 
quiries 171  pais.  Local  statutes  will  go  far  to  settle  many 
questions,  yet  there  are  numerous  cases,  even  under  favor- 
able statutes,  where  a  knowledge  of  the  circumstances  and 
situation  of  the' parties  must  result  in  the  rejection  of  the 
title  so  offered,  whether  the  conveyance  be  to  tlie  wife 
direct,  or  through  a  trustee,  for  it  is  a  fundamental  principle 
that  the  rights  of  creditors  can  not  be  infringed  or  defeated 
in  this  manner.* 

§  4.  Conveyances  by  Married  Women.  No  class  of  con- 
veyances call  for  greater  vigilance  or  closer  scrutiny  than 
conveyances  executed  by  mariied  women.  Tliough  at  pres- 
ent a  progressive  and  liberal  spirit  is  manifest  in  the  enact- 
ments of  the  various  State  legislatures,  tending  to  remove 
entirely  all  restraints  and  impediments  from  the  free  acqui- 
sition and  alienation  of  real  pro])erty  by  married  women, 
yet  such  enactments  are  of  ver}'  recent  origin,  and  furnish 

'  Not  necessarily  money:  "Wells  r.  Adm'r,  81  111.  G4;  Kellogg  v.  Hale, 

^Vells,    35    Miss.    6G4;    Wilder    v.  108  111.  164. 

Brooks,  10  Minn.  50;  Sims  u  Rick-  ^  Iluber  v.  Huber,   10  Ohio,  371; 

fls,  35  Ind.  181.   When  tliB  convey-  Brookbank  v.  Kernard,  41  Ind.  330; 

ance  is  made  as  a  provision  for  her,  Cardell  v.  Ryder,  35  Vt.  47. 

this  will  be  sufficient,  for  the  duty  ^  Watson  v.  Riskamire,  45  Iowa, 

of  maintenance  which  a  husband  2:5 1. 

owes  to  a  wife  is  a  good  considera-  *  Aultman  v.  Obermeyer,  G  Neb. 

tion  for  a    voluntary  conveyance!  2G0. 
vesting  title  in  her:    Gill  v.  Wood, 


PARTICULAR  CLASSES  OF  INDIVIDUAL  CONVEYANCES.         265 

no  rule  for  the  construction  of  conveyances  prior  to  the  time 
at  ^vhich  they  became  effective.  At  common  hiw,  a  married 
■\voma»i  could  make  no  disposition  of  her  real  estate,  exce]>t 
by  some  matter  of  record,  as  a  fine  and  recovery;'  hence  it 
folloAvs  that  a  separate  conveyance  of  her  property  by  a 
"U'oman  during  her  coverture  ■would  be  void,  unless  s]ieci;illy 
authorized  by  statute."  Such  statutes  now  exist,  and  confer 
upon  Vifeme  covert  a  number  of  rights  which,  being  in  dero- 
gation of  common  law  principles,  are  strictly  construed  by 
the  courts,  winch  have  usually  exacted  a  rigid  and  literal 
compliance.  The  removal  of  the  common  law  disabilities 
was  not  accomplished  at  any  one  time,  but  extends  over  a 
series  of  years,  and  an  additional  burden  is  thrown  on  exam- 
iner and  counsel  by  this  cause.  Different  formalities  were 
requisite  at  different  periods,  and  thorough  knowledge  of 
the  changes  in  the  law  in  this  respect  are  indispensable  to  a 
correct  and  satisfactory  examination.  By  the  common  laAv, 
upon  the  marriage  of  a  man  with  a  woman  seized  of  an 
estate  of  inheritance,  he  became  seized  of  the  freehold  jure 
tixoris  during  their  joint  lives,  and  if  he  had  issue  by  her 
born  alive,  then  for  his  own  life  absolutely;  in  which  hitter 
case,  if  he  survived  the  wife,  he  was  styled  tenant  l)y  the 
curtesy.'  Sul)sequently,  by  statute,  the  husl)and  was  given 
this  right  of  tenancy  by  the  curtesy,  whether  they  ha<l  issue 
born  or  not.  The  first  enactments  looking  toward  the 
power  of  alienati<^n  by  the  wife  provided  that  conveyances 
might  l)e  made  by  forms  of  deeds  ordinarily  em])loyed,  but 
attended  by  many  formalities,  ]iarticnhuly  in  the  matter  of 
acknowled'rtneut  and  authentication,  and  it  beinjr  a  vit.d 
])rinciplc  always  that  the  husband  join  in  the  conveyance. 
The  greater  part  of  these  foniinlitics,  in  a  majority  of  the 
States,  are  no  longer  recjuisite,  the  gradual  and  uniform  tend- 
ency of  modern  legislation  being  to  facilitate  the  power  of 
alienation  by  women  of  their  se|tarat<!  estates,  though  it  is 
still  in(iispen.sable,  in  nuiny  jurisdictions,  that  the  husbaad 

'  1  lilk.  Com.  203;  2   K.-nt   Com.  •  1  Rlk.  Com.  IL'C;  2    K.iit   Com. 

l.V).  lUS. 

»  Hovt  r.  Swar.  :>.',  III.  i:U. 


20G  ABSTRACTS   OF   TITLE. 

join  witli  the  wife  in  the  execution  of  the  deed.'  The  legis- 
hition,  in  some  of  the  more  adv^anced  States,  has  had  the 
elfcct  to  destroy  tlie  common  law  unity  of  person  in  husl)and 
and  wife  so  far  as  that  unity  is  represented  by  the  husband, 
and  in  its  stead  a  rule  has  been  introduced,  analogous  to  that 
of  the  civil  law,  by  which  the  Avife  is  regarded  as  a  distinct 
person  so  far  as  her  sejKirate  ])roperty,  contracts,  etc.,  are 
concerned,  while  her  conveyances  may  be  made  in  the  same 
manner,  and  with  like  effect,  as  if  she  were  unmarried."  The 
tenuTicy  by  the  curtesy  is  becoming  obsolete  or  attaches 
only  on  the  death  of  the  wife,  and  then  but  to  such  lands  as 
she  died  seized  of,  and  of  which  she  had  made  no  final  disposi- 
tion by  will.  Where,  however,  the  laws  of  a  State  give  to  the 
husband  the  same  right  of  dower  in  the  I'oal  estate  of  the 
Avife  that  she  has  in  his  real  estate,  the  effect  of  a  ncm-join- 
der  of  the  husband  in  a  deed  of  the  wife's  lands  has  the  effect 
to  preserve  such  dower  interest,  and  the  joinder  becomes 
necessary  to  a  properly  executed  deed.' 

§  5,  Effect  of  Wife's  Coiiveyaiice.  When  a  married 
woman  joins  with  her  husband,  or  otherwise  properly  exe- 
cutes a  conveyance  of  lands  held  by  her  in  her  own  righ  t 
which  purports  to  convey  the  entire  estate  therein,  she  is 
estopped  from  afterward  setting  up  any  title  to  such  lands, 
whether  it  existed  at  the  time  of  making  such  conveyance, 
or  was  subsequently  acquired  by  her,"  and  the  deed  or 
other  contract  of  a  married  woman  respecting  her  separate 
property  may  be  reformed  for  mistake  the  same  as  if  she 
were  sole.  Where  the  deed  is  made  upon  a  good  considera- 
tion,  defects  may  be  remedied,  and  the  deed  specifically  en- 
forced in  equity.' 

§  G.  Contimied — Acknowledgment.  The  formalities  at- 
tending the  acknowledgment  of  married  women's  convey- 
ances now  differ  in  no  material  resi)ect  from  other  deeds, 

»  Styles   V.    Probst,  G9    111.    882;  Westlake  v.  Westlake,  34  Ohio  St. 

Hollman  v.    De  Nyse,  51    Ala.  95;  ^  Huston  v.  Seeley,  27  Iowa,  183. 

Hand  V.  Winn,  52  Miss.  784;  Ai-m-  ••  King  v.  Rea,  56  Intl.  1. 

strong  V.  Ross,  20  N.  J.  Eq.  109.  '  Knox    v.   Brady,   74    111.    476; 

^   Price  V.    Osbom,  32  Wis.    34;  Shivers  v.  Simmons,  54  Miss.  520. 


PARTICULAR  CLASSES  OF  INDIVIDUAL  CONVEYANCES.         207 

though  formerly  they  involved  no  little  circumlocution  and 
ceremony.  It  was,  and,  in  some  few  States,  is  yet,  custom- 
ary to  make  a  personal  examination  of  the  wife  apart  from 
the  husband,  in  which  the  contents  and  nature  of  the  in- 
strument must  be  made  known  to  her,  and  upon  which  she 
is  required  to  make  a  "  free  and  voluntary  "  acknowledgnient 
without  "  fear  or  compulsion,"  and  to  further  state  that  she 
does  not  wish  to  retract  same,  resigns  her  dower,  waives 
her  homestead  rights,  etc.,  and  when  such  is  the  law,  courts 
have  usually  exacted  a  strict  and  literal  compliance,  and 
material  departures  or  omissions  have  been  held  to  vitiate 
the  convej^ance  as  a  means  of  passing  the  wife's  interest  in 
the  property.'  "The  law,"  says  Proffatt,'  "long  looked 
upon  the  wife  as  under  the  control  of  the  husband,  holding 
him  liable  for  her  torts  committed  in  his  presence,  on  the 
theory  of  the  power  of  coercion  over  her.  So  it  was  not 
expected  that  in  his  presence,  and  within  his  hearing,  she 
would  be  likely  to  act  contrary  to  his  wishes,  and  therefore 
it  required  her  to  signify  her  wish  or  intention  apart  from 
him  before  the  officer  taking  the  acknowledgment."  The 
•/esult  of  this  separate  examination  is  sometimes  embodied 
in  a  separate  certificate,  but  usually  in  a  separate  clause 
attached  to  or  following  the  general  statement  of  acknowl- 
edgment, and  in  all  cases  must  be  clear  and  ex})licit. 

§  7.  Release  of  Dower.  The  right  to  dower  is  a  legal 
right  whicli  can  not  be  barred,  unless  it  has  been  reliiupiishcd 
in  the  manner  prescribed  by  law,'  and  this  may   be  accoin- 

'  PiiliMe  t'.   Hall.  13  Bush  (Ky.),  n  on  law.  in  order  to  ontitlo  a  wiil- 

61;I^)onc'yu.  A(l:iniHon,4bTox.  619;  ow  to  dower,  she  must   Iiavo  been 

Wright  V.   Dufield,  58  Teiin.  218;  the  wifeof  tlieiiushand  at  the  time 

Petition  of  Bateinan,   11  R.   1.58");  liis  decejiso":  1    Wash.  IJeal  Prop., 

Little  V.  DodKO,  32  Ark.  453;  Silli-  •ISJO.  and  .see  also  Bish.  Mar.  &Div., 

man  v.  Cumniinfl,  13  Ohio,  110.  %m\;  2  Black,  Com.  130;  4  Kent 

•ProfTatt  on  Notifies,  40.  Com.  5J;   Wliit.se]|  v.  Mills.  0  Ind. 

•  iJaviH  V.  McDonald,  42  Ga.  205.  2'J!i;  McCraney  v.  M<(  Vnney,  5  Iowa, 

'*  A  ilivoroefrom  thel)ondH  of  mat-  2;!2.     A  re.isonahle  provision  out  of 

rimor>y,"  oliservcs  Mr.  Wjushlmni,  theliuslKind'sestale  isiisn.tlhj^iveii 

"  alwavHdefealH  the  ri^^htof  dower,  in  lieu  of  dower.     Sec  "  Cliancery 

unletiH  it  Im- saved  hy  the  st.itiite  an-  Proceed inj^'s,"  infru. 
thorixin^  hucIi  divorce;  for  at  com- 


208  Ar.STIiACTS    OF    TITLE. 

plishod  oitlior  1)V  a  joinder  of  tlicwifc  in  aconveyancoby  tlie 
husband,  or  by  a  separate  deed  of  relinquishment.'  Tlie 
release  Nvhich  a  woman  makes  by  joinini^  with  her  husband 
operates  against  her  only  by  estoppel  and  not  by  grant,"  and  in 
the  absence  of  any  express  legislative  requirement  to  the  con- 
trary, the  release  will  be  valid  and  effectual  without  mention 
of  her  name,  or  of  the  dower  in  the  liody  of  the  deed.  It  being 
only  an  inchoate  right,  and  not  a  present  estate,  no  words  of 
grant  are  necessary,'  Nor  is  it  necessary  that  there  should  1  )e  a 
consideration  moving  to  her,  and  though  she  might  insist 
on  a  consideration  inuring  solely  to  herself  as  a  condition  of 
such  release,  yet,  failing  to  exact  this,  her  release  will  be 
o-ood  if  supported  by  an  adequate  consideration  moving  to 
the  huslnind  alone.*  Where  a  wife  joins  with  her  husband 
in  a  conveyance  of  his  lands,  which  is  properly  executed  by 
her,  is  effectual  and  operative  against  him,  and  is  not 
superseded  or  set  aside  as  against  him  or  his  grantee^ 
her  inchoate  right  of  dower  is  thereby  forever  extinguished 
for  all  purposes.*  The  conveyance,  however,  must  be  of  the 
freehold  or  fee,"  and  such  as  Avould  destro}^  the  seizin  of  the 
husband,  while  the  right  is  of  such  a  nature,  when  inchoate, 
that  it  can  not  be  itself  transferred  by  any  of  the  instru- 
ments of  conveyance  in  common  use,^  and  can  be  released 
only  to  the  owner  of  the  fee,  or  to  some  one  in  privity  with 
the  title  by  his  covenants  of  warranty.'  The  release  is 
often  accomplished  by  a  separate  instrument  of  relinquish- 
ment, but  as  this  deed  acts  only  by  way  of  estoppel,  no 
particular  form  of  words  is  necessary,  and  any  ai)t  words 

•Sykcs  V.   Sykes,   49   Miss.  100;  *Bailoy  v.  Litton,  52  Ala.  282. 

Shepard  v.  Howard,  2  N.  H.  507;  *Elmdorf  u.  Lockwood,  57  N.  Y. 

Thatcher  v.  Rowland,  2  Uvt.  41.  022. 

'^Mallony  v.  I{oran,   12  Abb.  (N.  «Sykes  v.  Sykes,  49  Miss.  190. 

Y.)  Pr.  N.  S.  289;  do.  49  N.  Y.  111.  'Marvin  v.  Smith,  46  N.  Y.  571. 

3  Johnson  r.  Montgomery,  51111.  *La  Framboise  v.  Crow,  56  111. 

185;   Frost  v.  Deering,  21  Me.  15G;  197;  Reed  v.  Ash,  30  Ark.  775. 
Sterns  v.   Swift,  8  Pick.   532,  but 
compare  'McFarland  v.   Febiger,  7 
Ohio,  194. 


PAETICULAR  CLASSES  OF  I^'DIyIDUAL  CONVEYANCES.        2G9 

indicating  the  intent  will  suffice.'     The  abstract  of  such   an 
instrument  would  consist  mainly  of  its  recitals,  thus; 


Clio  S.  Greene 
to 
James  ^V.  P enfold. 


Release  of  Dower. ^ 
Bated  Nov.  6,  1S51. 
Recorded  Nov.  7,  ISol. 
Vol.  ''  /?,"  jyaf/e  379. 

^^ For  a  valuable  co?isideratio7i,''  releases  all  right  and 
claim  of  dower  in  and  to  a  certain  piece  of  land  in  the  South- 
West  fractional,  quarter  of  Section  19,  Town  2  North,  Range 
22,  Fast  — ,  described  in  a  convcf/ance  Ijy  ^^mij  husband,-^ 
Patricic  P.  Greene,  to  said  James  W.  Penfoldj  and  recorded 
in  Vol.  '' B,"  pa^e  124. 

Acknowledged  Nov.  6,  1S51. 

Whenever  practicable,  let  the  deed  of  relinquishment  im- 
mediately follow  the  luisban  I's  deed  irrespective  of  interven- 
ing conveyances,  or  if  to  a  grantee  of  the  husband's  grantee, 
then  immediately  after  his  deed,  the  object  being  to  keep 
the  dower  interest  closely  associated  with  the  fee. 

§  8.  Joint  Teuaiicies  and  Tenancies  in  Common. — 
Where  several  persons  purchase  land,  and  advance  the  money 
in  equal  proportions,  and  take  a  conveyance  to  them  and 
their  heirs,  this,  at  common  law,  is  a  joint  tenancy;  that  is,  a 
purchase  by  them  jointly  of  the  chance  of  survivorsliip, 
which  nuiy  lui])pen  to  the  one  of  them  as  well  as  to  the  other." 
'•  The  doctrine  of  survivorshij)  is  not  in  accordance  with  the 
genius  of  our  institutions,"  remarks  Morton.  J.,*  and  thr  inci- 
dent of  survivorship  has  been  generally  aholishcd  in  tlic 
United  States,  except  in  a  few  instances,  while  thi^  extent  of 
its  o])eration  has  everywhere  been  very  much  restricted. 
Conveyances  to  two  or  more  persons  arc^  now  usually  held 
to  create  a  tenancy  in  common,  unless  the  language  used 
clearly  and  manifestly  shows  an  intention  to  create  a  joint 

'CJillilan  I'.  Swift,  21  N.  Y.    Sup.  Ii-uhih,"  hut  this  is  tlu'  nanin  Hu-y 

Ct.  •'i74.  havi'iuHiuind. 

•DfM'ds  of  thi«  fharactf'r.'ircmoro  '2  Su^'.l.  V.  ami  \\  IlTk  Am.  I'M.), 

projicrly  "SuiTt-nilt'iB"   lliaii  "Kc-  M'.urintt  c.  I'liitl.  :.'J  Tick.  .'J.'i?. 


270  ABSTRACTS   OF   TITLE." 

tenancy.  'J'onants  in  common  arc  considered  as  solely  and 
severally  seized;  they  have  several  and  distinct  freeholds,  and 
there  is  no  privity  of  estate  between  them.'  They  may  con- 
vey and  dispose  of  their  undivided  interests  to  a  stranger  and 
the  same  may  be  taken  and  sokl  on  execution/  the  purchaser 
smiply  talcing  the  same  position  in  relation  to  the  co-tenants 
as  was  occupied  by  the  grantor  or  judgment  debtor;'  but  one 
tenant  in  common,  owning  an  undivided  interest,  can  not  con- 
vey to  a  stranger  a  certain  portion  of  the  tract  in  common, 
and  put  the  purchaser  in  possession  of  the  portion  conveyed,* 
unless  the  other  tenants  confirm  the  conveyance." 

§  9.  Partition  Deeds.  Where  property  is  owned  by  sev- 
eral in  common,  the}'^  may,  by  properly  executed  deeds,  con- 
vey to  each  other  in  severalty,  specific  portions  of  what  was 
formerly  held  jointly,  and  where  the  course  of  title  clearly 
shows  the  origin  of  their  property  rights  and  the  proper 
measure  of  their  title,  the  deeds  so  executed  are  evidences 
of  title  of  the  highest  order.  This  will  be  the  case  of  part- 
ners, and  all  purchasers  by  deed  or  will  in  which  they  are 
specifically  designated,  but  not  always  when  the  claim  is  by 
descent.  A  partition  deed  is  mutual  unless  otherwise  speci- 
fied, the  interchange  of  interests  forming  the  consideration. 
In  abstracting  same,  all  the  material  recitals  should  be  fully 
stated,  and  the  method  of  division  minutely  described..  The 
ordinary  covenants  will  not,  as  a  rule,  be  found,  but  a  mutual 
covenant  of  non-claim  and  warranty  against  their  own  acts, 
and  those  claiming  under  them,  is  usually  inserted  in  their 
place.  The  deed  should  be  signed  and  acknowledged  by 
both,  and  is  presumably  interchangeably  delivered.  A  deed 
possessing  these  and  other  requisites  might  be  shown  in  the 
abstract  as  follows : 

' Burr  V.  Mueller,  65  111.  258.  108;  Hartford,  etc..  Ore  Co.  v.  Mil- 

« Butler  V.  Roys,  25  Midi.  53.  ler,  41  Conn.    112.    Compare  Barn- 

3  Fischer  v.  Eslaman,  68  111.  78.  hart  v.  Campbell,  50  Mo.  597. 

*  Mattox  V.  Hightshue,  39  Ind.  95;  '  Hartford,  etc.,  Ore  Co.  v.  Miller, 

Shepardson  v.  Eowland,  28   Wis.  41  Conn.  112. 


PAKTICULAE  CLASSES  OF  IXDIVIDCAL  COXA'ETANCES.         271 


Andrew  Barlow^  \      Pcwtltion  Deed, 

to  and  with  \      Dated,  etc. 


Charles  Dalton.  j        *        *       * 


* 


Recites^  that  said  parties  are  t\ow  seized  in  fee  simple.,  as 
tenants  in  common  of  the  following  descrihed  real  estate 
[descrihing  same']^  and  have  agreed  to  make  afull^just^  and 
equal  partition  and  division  between  them.,  of  and  in  the 
aforesaid  tract,  of  and  according  to  their  resp>cctive  shares 
and  interest  therein,  in  manner  following   [describing  saine\ 

And  said  Andrew  Barlow  gives,  grants,  allots,  assigns, 
sets  over,  releases  and  confirms  to  said  Charles  Dalton  the 
said  first  descrihed  piece  or  allotment  of  land,  to  have  and  to 
hold    *****    in  severalty,   as  his  full  share  therein. 

And  Charles  Dalton  gives,  grants,  etc.  {describing his  allutr 
ment.) 

And  said  Andrew  Barlow  covenants  that  said  Charles 
Dalton  shall  freely,  etc.,  hold  arid  enjoy  said  first  described 
jnece  or  allotment  of  land  without  molestation,  interruption^ 
or  denied  of  him,  said  Andrew  Barlow, or  any  person  claim- 
ing by,  through,  or  under  him.  {And  said  Charles  Dalton 
covenants  the  same  in  regard  to  said  second  described pi^ce  or 
allotment  of  land.) 

Signed  and  acknowledged  by  both  parties  August  1,  ISSl. 

§  10.  Partnersliip  Convoyaiicos.  Lands  liold  by  sev- 
eral persons  as  partners,  ])urcliase(l  by  them  with  ]>artner- 
sljip  funds  and  for  partnership  pur[)Osos,  are  regarded  in  a 
somewhat  diUerent  li'^dit  from  lands  held  by  an  indivi(hiMl, 
and  for  certain  j)urposes  may  be  treated  as  personal  prop- 
erty. Even  though  the  title  be  taken  in  the  indivi(hial 
name  of  one  or  both  ])artners,  tlie  land  will,  in  ecpiity,  Im* 
treated  as  j)ersonalty  so  far  as  is  necessary  to  pay  the  debts 
of  the  partnership  or  adjust  tlie  rights  of  the  partners.  No 
other  ordilferent  f«»i  inalilies  are  necessary  in  its  ac(piisition 

'  Wlicn    tlie    coiirsi-    of    title   ifl      voynnci'   in    this    nlistrnct    is  Hup- 
tlirotiKli    Andrew    H,irlr»w,    Himply       lK)sed  to  be  fioiu  Clmrle.^  l>:illiiii. 
reveree  the  imiiiea,    Tlie  next  con- 


272  ABSTRACTS    OF    TITLE. 

than  in  case  of  ordinary  deotls  of  conveyance,  yet  thougli 
the  conveyance  to  them  is  in  form  snch  as  to  make  them 
tenants  in  common,  still  in  the  absence  of  an  express  agree- 
ment, or  of  circumstances  showing  an  intent  that  the  estate 
conveyed  sliall  l)e  hekl  for  their  sei)arate  use,  it  will  be  con- 
sidered and  treated  in  equity  as  vesting  in  them  in  their 
ixirtncrship  capacity,  and  clothed  with  an  implied  trust, 
that  they  hold  it  until  the  purposes  for  which  it  was  luir- 
chased  shall  be  accomplished,  and  that  it  shall  be  applied, 
if  necessary,  to  the  payment  of  the  partnership  debts. 

Upon  the  dissolution  of  the  partnershi})  b}^  the  death  of 
one  of  the  partners,  the  survivor  has  an  equital^le  lien  upon 
such  real  estate  for  his  indemnity  against  the  debts  of  the 
lirm,  and  for  securing  the  balance  that  may  be  due  to  him 
from  the  deceased  partner  on  settlement  of  the  partnership 
accounts  between  them,  and  the  widow  and  heirs  of  such 
deceased  partner  have  no  beneficial  interest  in  such  real 
estate  until  the  surviving  partner  is  so  indemnified.*  The 
legal  title,  it  is  true,  is  cast  upon  the  heirs  as  in  any  other 
Ciise  of  tenancy  in  common,  but  only  becomes  certain  after 
all  the  debts  of  the  firm  are  paid."  As  the  widow  and  heirs 
cm  claim  onl}^  in  the  right  of  the  husband  and  father,  such 
derivative  right  in  equity  vriil  extend  no  further  in  behalf 
of  the  wife  and  children  than  that  of  the  partner  from 
whom  it  is  derived."  A  surviving  partner  may  sell  the 
real  estate  of  the  firm,  and  though  he  can  not  convey  the 
lef>-al  title,  which  passed  to  the  heir  or  devisee  of  the  de- 
ceased partner,  his  sale  will  yet  invest  the  purchaser  with 
the  equitable  ownership  of  the  land  and  the  right  to  coni})ol 
a  conveyance  of  the  title  from  the  heir  or  devisee  in  a  court 
of  equity.* 

Conveyances  of  partnership  real  estate  should  be  executed 

•  2  Sug(i.  V.  and  P.  427  (Perkins'  »  Bumside  v.  Merrick,  4  Met.  537. 

notes);  Dyer  v.  Clark,  5  Met.  5(32;  *  Dupuy  v.  Leavenworth.  17  Cal. 

Cobble  V.  Tomlinson,  50  Ind.  nr^O,      262;  Shanks  v.  Klein,  104  U.  S.  18. 

'  CoUins  V.  Warren,  29  Miss.  236; 
Holland  v.  Fuller,  13  Ind.  195; 
Shearer  v.  Shea  e  •.  98  Mass.  111. 


PAKTICULAR  CLASSES  OF  INDIVIDUAL  CONVEYANCES.  273 

by  each  and  all  of  the  partners  in  the  same  manner  as  deeds 
by  tenants  in  common,  and  it  seems  that  a  deed  executed 
by  one  partner  only  in  the  name  of  the  lirm  will  convey 
only  the  undivided  portion  of  the  estate  owned  by  such 
partner/  or  rather  only  a  contingent  right  to  such  part 
after  the  debts  are  paid,  while  the  authorities  are  unani- 
mous in  declaring  that  a  iirm  name,  as  "  Jno.  Smith  cV: 
Co.,"  is  not  a  proper  designation  either  of  grantor  or 
grantee,  and  effective  in  either  case  only  for  or  against 
the  persons  specifically  named. ^ 

§  11.  Corporate  Coiiveyancos.  There  are  three  classes 
of  corporations  recognized  by  our  laws  :  Public  munici]  al 
corporations,  corporations  technically  private,  but  of  a  quasi 
public  character,  as  railroads,  etc.,  and  corporations  strictly 
private,  all  of  whom,  under  general  or  special  conditions, 
have  the  power  to  acquire,  hold,  and  transmit  the  title  to 
real  estate.  Though  regarded  in  law  as  jiersons  for  certain 
purposes,  they  are  not  entitled  to  the  privileges  of  citizens,' 
as  guaranteed  by  the  Federal  Constitution,  neither  in  the 
State  of  their  creation,  nor  in  other  States  which  they  mav 

'  Dillon  u.  Brown.  11  Gray,  179,  47  111.  45;  the  flifficultics  attending 

Nor  will  it  render  the  other  part-  such   proof  will  he  readily  seen, 

ners  liahle  on  the  covenants:     Hob-  however,   and  while  by  no  means 

son  V.  Porter,  2  Col.  T.  28.  insurmountable  they  are  of  sucli  a 

'Arthur  r.  Webster,  23  Mo.  378;  natiue  as  to  make  it  almost   im- 

Winter  v.  St<x;k,  29  Cal.  407;  Gos-  perative    on    counsel   to    demand 

sett  r.  Kent,  19  Ark.  607;  Barnett  that  the  title  be  assured  l)y  a  better 

t'.  Lachman,  12Nev.  3G1.     A  sealed  deed. 

instrument  (deed  or  other  specialty),  'Although  a  corporation  is  not 

executed  by  one  partner  in    the  a  citizen  within  the  several  provis- 

name  of  the  firm,  maybe  treated  ions  of  the  Constitution,  yet  where 

as  the   deed   of   all   the   partners,  rights  of  action  are  to  l)c  enforce«l 

ui>on  proof  that  prior  to  the  exi'cu-  by    or    against   a     coijioration,    it 

tion  the  otliers  ha<l  autliorizcd  liim  will  be  considered  as  a  citizen  of 

to    execute    the    instrument,    and  tlie   St;ite   wliere   it   was   cre.ited: 

after  execution,  witli   full  knowl-  IJaihvay  Co.  v.  Wbitton,  i;{  Wall, 

etlgc,  ac<iuit*Hce<l  in  what  Ik*  liad  270.     This,  howcvir,  ii|)plifs  more 

done:    Gilw<m  v.  Warden,  M  Wall.  parlieMl.iriy    to    controversies     in 

(U.   S.)  244;  Cady  v.  .Shepard.    11  the  l\ileral  Comts. 
Pi.k.  (MaH8.)  400;  Pc-ine  v.  Weber, 
18 


274  ABSTRACTS    OF   TITLE. 

enter  for  the  purpose  of  business.  Tlieir  rif^lit  to  acquire 
and  transmit  property  is  a  statutory  one  in  the  home  iState, 
and  in  another  State  is  based  upon  the  comity  between 
the  States.  In  the  latter  case  it  is  a  voluntary  act  of  grace 
of  the  sovereign  power,'  and  is  inadmissil)le  when  contrary 
to  its  policy  or  prejudicial  to  its  interests."  A  corporation 
has  only  such  powers  as  its  charter  gives  it,  either  expressly, 
or  as  incident  to  its  existence,  and  in  determining  whether 
a  given  act  is  within  the  power  of  a  corporation,  it  is  neces- 
sary to  consider,  first,  Avhetlier  the  act  falls  within  the 
])Owers  ex})ressly  enumerated  in  the  charter  or  delined  by 
law;  and  second,  whether  it  is  necessary  to  the  exercise  of 
one  of  the  enumerated  powers,"  and  these  apply  both  to  the 
acquisition  and  transfer  of  real  property.  Land  whicli  a  cor- 
poration can  not  hold  in  its  own  name  it  can  not  hold  in  tlie 
name  of  another,  and  when  a  corporation  can  not  hold  the 
leo-al  title  to  land,  it  can  not  take  a  beneficial  interest  in  it.' 
It  would  seem,  therefore,  that  the  organic  act,  or  some  por- 
tion thereof,  should  supplement  every  conveyance  purport- 
ino"  to  pass  title  to  a  corporation  as  constituting  one  of  the 
strongest  assurances  of  the  validity  of  suljsequent  convey- 
ances, but  in  practice  this  is  seldom  done,  though  the 
authority  to  make  a  deed  frequently  constitutes  one  of  tlie 
recitals  in  conveyances  from  corporations.  As  corporations 
are  now  almost  universally  organized  under  general  laws, 

'Ducat  V.   Chicago,  48  111.    172;  make  such  a  contract;  and,  if  the 

Ins.  Co.  V.  Commonwealth,  5  Bush  charter  and  valid  statutory  law  are 

(Ky.),  68;   State  r.  Fosdick,  21  La.  silent  upon  the  subject,  whether 

Ann.  434.  the  power  to  make  such  a  contract 

-  Carroll  v.  East  St.  Louis,  67  111.  may  not  be  implied  on  the  part  of 

568.  the  corporation  as  directly  or  inci- 

3  Vandall  v.   Dock  Co. ,   40  Cal.  dentally  necessary  to  enable  it  to 

83;  PuUan  v.  R.  R.  Co.,  4  Biss.  35;  fuLTill  the  purpose  of  its  existence, 

Weckler  V.  Bank,  42  Md.  581;  Mat-  or  whether  the  contract  is  entirely 

thews  V.  Skinner.  62  Mo.  329.     In  forei,!j:n  to  that  pui-pose:    Weckler 

determining  whether  a  coiiwration  v.   Bank,  42  Md.  581;  Watson  v. 

can  make  a  particular  contract,  it  Water  Co.,  36  N.  J.  L.  195. 
must  be    considered    whether  its  •*  Coleman  v.  R.  R.  Co.,  49  Cal. 

charter,   or  some  statute  binding  517. 
upon   it,   forbids  or  permits  it  to 


PARTICULAR  CLASSES  OF  INDIVIDUAL  CONVEYANCES.  li  t  J 

which  define  their  powers  in  this  respect,'  the  matter  ]n-e- 
sents  fewer  intricacies  than  formerly,  yet  as  a  rule,  when- 
ever during  the  course  of  title  the  same  passes  tlirough  a 
corporation,  and  the  conveyances  furnish  no  internal  evi- 
dence to  demonstrate  their  validity,  a  requisition  should  be 
made  by  the  examining  counsel  for  such  information  as  in 
his  opinion  may  be  necessary  to  show  same. 

§12.  Statutes  of  Mortmain.  The  common  law  right  of 
corporations  to  take  and  hold  real  estate  has  been  restrained 
in  England  from  an  early  thiy,  by  a  series  of  laws  called 
statutes  of  mortmain,  which  were  passed  to  repress  the 
grasping  and  rapacious  spirit  of  the  church  which  was  ab- 
sorbing in  perpetuity  the  best  lands  in  the  kingdom.  "  Tliey 
were  called  statutes  of  mortmain,"  observes  an  eminent 
writer,  "  because  designed  to  prevent  the  holding  of  lands 
by  the  dead  clutch  of  ecclesiastical  corporations,  which  in 
early  times  were  composed  of  membei's  dead  in  law,  and  in 
whose  possession  property  was  forever  dead  and  unproduct- 
ive to  the  feudal  superior  and  tlie  public."'  This  system  of 
restraint,  though  originally  confined  to  religious  cor])ora- 
tions  was  subsequently  extended  to  civil  or  lay  corporations. 
The  English  statutes  of  mortmain,  though  tliey  have  been  held 
in  some  of  the  States  to  be  the  law,  so  far  as  ai)pli('able  to 
their  political  condition,  liave  not  been  re-en,acted  in  this 
country;  yet  the  policy  has  been  retained  and  is  manifest  in 
the  general  and  special  enactments  of  every  State.  To  pre- 
vent monopolies,  and  to  coiiline  the  action  of  incorporated 
com])anies  strictly  within  tlieir  jtrojter  sphere,  the  acts  in- 
corp(;rating  them  ahnost  invariably  limit  not  oidy  the 
amount  of   ])r<)jierty   they  shall    ln»ld,  but   frecpiently  pi-c- 

'  The  filing  of  articles  of  inror-  .Srni'Itin;^  f^"-.  4   Ni'li.   110;  Milling 

poration  in  one  of  llic  county  olHcea  Co.  t*.  Ilcrkinu'r,  lOIml.  \Vi\  WJu-t- 

und  with  th«!  Serrftary  of  State  is  stone  v.  Ottawa  rnivt-i-sity.  i;{Kan. 

nowtheiiMuahnannt-rof  or^anizin^  820;  Hunt  v.   HridKc  Co..  11   Kan. 

cori»orationH.    Tlif  law.and  tln'aiti-  41-;    State   v.  Leninj^well,  Til   Mo. 

clc«H4jnii'<l,  t:ik('nto;^(ther,  arecon-  AW. 

Hifh-n"*!  in  the    natun*  of  i\   ^,'rant  *An^j.  Sc  .\in<'«  on   Corp..  :^  MM; 

from  tlie  SLal«',  and  rrjUMtitnt*-  the  Co.  Lit.  'J  h. ;  1  lilac  k.  Com.  ITU, 
charter  of  tliL- cutniiany:    M.Im.ii  i\ 


2jG  abstracts  of  title. 

scribe  in  uLat  it  sliall  consist,  the  pnrposcs  for  wliicli  it 
shall  alone  be  pnrcliased  and  held,  and  the  mode  in  which 
it  shall  be  applied  to  effect  those  purposes.'  Special  legisla- 
tion for  corporations  is  quite  generally''  abolished,  and 
companies  are  incorporated  under  general  laws  of  uniform 
a]>}>lication,  but  the  policy  is  still  vigorously  maintained. 

§  13.  Power  of  Aciiiiisitioii — User.  There  is  a  broad 
distinction  between  the  power  of  accpiisition,  and  the  use  to 
which  the  projierty  is  to  be  applied,  and  tlie  elfect  of  the  dis- 
tinction upon  the  rights  of  third  ])ersons  is  equally  marked. 
Where  the  charter  of  a  corporation,  or  the  general  law  under 
which  it  is  organized,  prohibits  the  pureliase  of  lands  for  any 
purpose,  a  deed  to  it  would  be  an  utter  nullity,  as  its  capacity 
to  take  is  determined  by  the  instrument  or  act  Avhich  gave 
it  existence;"  but  having  the  power  to  purchase  and  take, 
though  for  a  specific  purpose  only,  it  becomes  fully  invested 
Avith  title  by  a  deed  properh'-  executed,  even  though  the 
property  be  acquired  and  used  for  a  purpose  forbidden  by 
the  organic  act.^  As  a  rule  the  deeds  to  and  from  corpora- 
tions are  effective  to  convey  the  title,  and  titles  so  derived 
can  not  be  impeached  collaterally,  nor  their  validity  be 
questioned  by  third  persons,  on  the  ground  that  the  transac- 
tion was  beyond  the  corporate  power;  for  where  a  corporation 
exceeds  its  powers,  the  remed}^  is  by  a  direct  action  in  the 
name  of  the  State'  who  alone  can  interfere.'  Parties  dealing 
with  corporations  are  chargeable,  however,  with  notice  of 
the  limitations  imposed  by  the  charter  ujion  their  powers.' 

'  Ang.  &  Auies  on  Corp.,  p  151.  Kelly  v.  Transportation  Co.,  30reg. 

^Leazure  v.  Hillegas,  7  S.  &  R.  1S9.' 

(Pa.)  319.     Yet  whether  real  estate  'DeCamp  v.   Dubbins,   29  N.  J. 

has  been  acquned  in  excess  of  the  Eq.  30;  Hayward  v.   Davidson,  41 

corporate  powers  to  take  and  hold  Ind.   214.     The  doctrine  of  idtni 

can  not  be  made  a  question  by  any  vires  is  gen    a   v  applied  only  to 

party,  except  the  State,  who  alone  such  contracts  as  remain  wholly 

mustr  assert  her  policy  in  that  re-  executory:  Thompsons.  Lambart, 

gard :  Alexander  v.  ToUeston  Club,  44  Iowa,  239. 

110111.65;  Baker u.Neflf,  73  Ind.  G8.  « Franklin  Co.  v.  Lewistou  Inst. 

2 Hough  V.  Land  Co.,  73  111.  23.  for  Savings,  68  Me.  43. 

*  Smith  V.  Sheeley,  12  Wall.  358; 


PARTICULAR    CLASSES    OF  liNDIVIDUAL  CONVEYANCES.       2t  i 

§  14.  Municipal  Corporations.  ]\[unieipal  corporations 
are  creatures  of  the  statute,  and  can  exercise  only  such  powers 
as  are  expressly  conferred,  or  such  as  arise,  by  im})licati()n. 
from  ^eiiei'al  powers  g-rantod.  AVhere  the  charter  empowers 
a  munieijial  corporation  to  buy  and  hold  real  property,  it 
must  be  understood  to  be  })urchases  made  in  the  ordinary  way. 
and  for  cor[)orate  i)ur})0ses  only;  and  a  grant  to  purchase  for 
})articuhir  purposes  would  seem  to  be  a  limitation  on  the 
power  of  such  corporations,  and  to  exclude,  by  necessary  im- 
plication, all  purchases  for  mere  speculation  and  ])rolit. 
••  Power  to  purchase  for  si)eculative  purposes,"  says  Scott,  J., 
"is  not  among  the  usual  jiowers  bestowed  on  municipal  cor- 
porations, nor  does  such  power  arise,  b}'  implication,  from  any 
of  the  ordinary  powers  conferred  on  such  corporations."  ' 
^[unicipal  corporations,  under  a  general  grant  of  power  to  l)uy 
and  iiold  land,  may  purchase  within  the  corporate  limits,  such 
property  as  may  be  necessary  for  corporate  purposes,  and 
may  even  buy  and  hold  real  estate  beyond  the  corporate 
limits,  for  the  location  of  cemeteries,  pest  houses,  etc.,"  but 
in  the  absence  of  any  enabling  statute,  can  not  become  the 
purchaser  of  lands  or  lots  at  a  tax  sale,  and  on  complianct} 
with  the  statute  in  that  regard  obtain  a  deed  that  will  in- 
vest such  corporations  with  the  title  to  the  property.* 

§  15.  Conveyances  to  Corporations.  By  common  law, 
and  in  the  absence  of  statutory  i)rohibitions,  corporations 
aggregate,  in  whatever  numner  created,  can  take,  liUe 
natural  ])ersons,  by  every  method  of  conveyance  known  to 
the  law.*  No  i)articular  words  of  grant  are  necessary,  othrr 
than  those  in  common  use  in  conveyances  to  natural  per 
sons,  though   it   is   usual   to  insert,  as  a  w<»rd  of  limitation, 

'  Cit)' of  rhampai^  r.  Ilariiioii,  Mim.  Corp.  ;^  i:!.'!;  iiml  soo  Dfiitoii 

{»M   111.    401;  ami  bi-e  2    Dill.    Muii.  v.    Jackson,- 2    Johns.     Ch.     IIM; 

0)ri».  ^  Wi.  C'liamiMTs  r.  St.  I/)iiiH,  21)  Mo.  r»|;{. 

'  2  I»ill.  -Mun.  Corp.  g  •lii.'i.     Tlic  ^  ( "ity  of  C'haiuitaijjn  f.  Uarinon. 

^«'n<Tal  riili-  is  that  niiini(-ip:il  <-or-  DH  111.  P.M. 

jMirationH  can  not  pun-hasc  or  lioM  *  Am.  Hihl»«  Society  »'.  Shi-rwoiMi, 

n-al  i-HUite  iM-yond  their  t«-rritori!il  1   A\>\>.  (N.  Y.)  App.    227;  .Vhk-  «V 

limitH,   iinU'HM   thw  iHjwtT  in  con-  Anic«  on  t'orp.  1  |n. 
ftrr.<l  by  thi-   h'^'inlatiirc:     2  Dill. 


278  ABSTRACTS    OF   TITLE. 

the  term  "successors."  The  word  is  not  necessary,  liowevor, 
to  convey  a  fee,  simple,  in(lej)endeiit  of  the  statute  which 
provides  for  a  fee,  unless  restrained  Ijy  express  terms  or 
n«.-cessary  im}»lication;  for,  admitting  that  such  a  grant  be 
strictly  only  a  life  estate,  yet  as  the  corporation,  unless  of 
limited  duration,  never  dies,  such  estate  for  life  is  perpetual, 
or  a  equivalent  to  a  fee  simple,  and  therefore  the  law  allows 
it  to  be  one.'  As  between  the  parties,  where  the  corpoi-a- 
tion  is  authorized  by  its  charter  or  the  law  under  which  it 
is  organized,  to  purchase  land,  receive  conveyances  for,  and 
bold  title  to  the  same,  but  is  prohibited  from  purchasing 
and  holding  for  any  other  than  a  prescribed  pur})ose,  the 
question  of  the  validity  of  the  title  conveyed  can  not  be 
inquired  into.  The  title  vests  in  the  corporation  by  a  deed 
duly  executed,  and  the  question  as  to  whether  the  corpora- 
tion has  exceeded  its  power  can  be  raised  only  by  the  State 
or  by  a  stockholder.^  A  distinction  must,  however,  be  ob- 
served between  the  power  of  acquisition  and  the  use  to 
which  the  land  is  to  be  applied. 

§  16.  Conveyances  by  Corporations.  All  private  cor- 
porations have  an  incidental  right  to  alien  or  dispose  of 
their  lands,  without  limitation  as  to  objects,  unless  restrained 
by  the  act  of  incorporation,  or  by  statute;  and  the  poAver  to 
mortgage,  when  not  expressly  given  or  denied,  will  be  re- 
garded as  an  incident  to  the  power  to  acquire  and  hold  real 
estate,  and  to  nudce  contracts  concerning  same."  In  general 
they  convey  their  land  in  the  same  manner  as  individuals, 
the  laws  relating  to  the  transfer  of  })r()}>erty  being  equally 
a})plicable  to  both,'  and  the  only  features  that  ])articularly 
distinguish  this  class  of  conveyances  from  individual  deeds 
are  in  the  execution  and  acknowledgment.  The  orderly  jiarts 
of  the  deed  follow  closely  the  ordinary  deeds  in  common 

'  Ang.  &  Ames  on  Corp.  141;  2  Bakor  v.  Neflf,  73  Ind.  68;  Kelly  v. 

Blk.  Com.  109;  Overseers  v.  Sears,  Transportation  Co.,  3  Oreg.  1^9. 

22  Pick.   122;  Congregational  So-  '^ .' g  icultural    Society    v.    Pacl- 

ciety  V.  Stark,  34  Yt.  243.  dock,  HO  111.  263. 

2  Hough  V.  Land  Co.,  73  111.  23;  '  ^  Ang.  &  Ames  on  Corp.  §  193. 
Smith  V.   Sheeley,   12  Wall.   358; 


PARTICULAR  CLASSES  OF  IXDIVIDU.\X  COXVEYANCES.         270 

use,  the  full  name  of  the  cor]ioration  appearing  in  the 
premises  as  the  grantor,  while  the  boily  of  the  deed  frequently 
contains  a  recital  showing  the  inducement  of  the  instru- 
ment and  the  authority  of  its  issuance.  The  execution  is 
now  usually  regulated  by  express  statute,  providing  for  a 
specific  method  of  signing  and  sealing  and  sometimes  for 
acknowledgment  as  well.  The  seal  is  usually  indisi)ensal)le 
to  a  perfect  execution  and  its  absence  is  a  defect  that  calls 
for  notice.  "  A  corporation,"  says  Blackstone,  "  being  an 
invisible  body,  can  not  manifest  its  intentions  by  any  per- 
sonal act  or  discourse;  it  therefore  acts  and  speaks  by  its 
common  seal.  For,  though  the  particular  members  may 
exjiress  their  ])rivate  consents  to  any  act,  by  words  or  sign- 
ing their  names,  yet  this  does  not  bind  the  coi-poration;  it 
is  the  fixing  of  the  seal,  and  that  only,  which  unites  the 
several  assents  of  the  individuals  who  comjiose  the  commu- 
nity, and  makes  one  joint  assent  of  the  whole."'  This  is 
now  true,  however,  only  in  a  very  limited  sense,  as  corpo- 
rations do  contract  by  officers  without  the  use  of  the  seal, 
but  in  the  conveyance  of  land  the  rule  is  still  maintainetl, 
and  the  seal  must  be  the  common  seal  of  the  body,  either 
originally  or  by  adoption,  and  must  be  affixed  by  com])etent 
authority,"  "Whatever  light  the  instrument  sheds  uj)on  itself 
by  way  of  recital  or  otherwise  should  always  be  stated,  either 
literally  or  with  little  deviation  froni  tlie  original,  the 
literal  transcriptions  l)eing  indicated  by  quotation  marks. 
Here  follows  an  example  of  an  abstract  of  a  simple  deed 
by  a  c(jrporation : 


Sonlh  Park  Coinmh/iumn'S^ 
a  jtuhlic  corpitrdtiitn  exist- 
imj  under  and  hij  virtue  of 
the  lawH  of  I  lliuols, 

to 

Willltiin    Tliowaa. 
Voc.  128^88. 


QiiUchiim.  di'cd. 

Jhttid  Amj.  7,  ISSO. 

Ji\vordid  A  u(j.  10,  ISSO. 

Jlnuh  no,  ptuje  f,J,0. 

( 'onKidrnitlo'n  $1(10.00. 

Cinnu'ijH  (ind  (pi'iichinnn  all 
in  ft  rest  said  r<>r/>(>ra/t'on  ac- 
ijii'ti'i'd  or  dcriiYd  imdrr, 
t/iroit(jfi,  or  by  lurfiw  (fa  ctr- 


'  1  I'.l.  rVmi.  •175.  r»72.     The  wul  Ih  itH<If  privia  fucir 

'  Jjifknon  r,  CuiiiiiJxll,  ri  \Vi  ii<l.       fviili-iicc^  tluit    it  wiut  alHxcil  hy 


230 


ABSTRACTS    OF   TIT  I.E. 


fain  tax  sale  deed  to  said  corjx/raiion  lij  t/ie  County  Clerk  of 
Cook  County,  Illinois,  dated  June  i,  1S70,  and  recorded  in 
Book  So  of  liecoi'ds,  x>a(je  6J^0,  in  and  to  the  following  de- 
scribed real  estate,  situated  in  said  Cook  County,  to  wit: 
\llere follows  the  description^  Said  intei'est  acquired  being 
a  tax  claim  covering  the  1st,  2d,  3d,  Jfth,  5th,  Gth,  7th  and  Sth 
installments  of  the  South  Park  Special  Assessment. 

'•'•In  witness  whereof,  said  corporation  hatli  cau!«d  this 
indenture  to  be  signed  by  its  President  and  attested  by  its 
Secretary,  and  its  ojjicial  seal  to  be  hereto  affixed." 


Signed : 


''J.E.  WALSH,  President. 


Attest, 


''IL  W.  HARMON,  Secretary:' 


Ac'knoidedged  by  said  President  and  Secretary  as  the  free 
and  voluntary  act  of  said  South  Park  Commissioners. 
Certificate  of  acknowledgment  dated  Aug.  1,  1880. 

§  17.     Continued  —  Execution  —  Acknowledgment.    In 

the  preceding  example,  it  will  be  observed  that  the  execution 
and  accompanying  recitals  are  quoted,  and  this  practice  is 
recommended  as  being  conducive  of  greater  certainty,  and 
as  presenting  an  answer  to  every  question  that  can  arise. 
The  mode  of  execution  of  corporate  conveyances  is  usually 
]n'escribed  by  statute,  and  ordinarily  consists  of  the  signature 
of  the  ])rcsident  or  corresponding  olHcer  who  subscribes  as 
such  officer,  and  the  affixing  of  the  corporate  seal.  In  ad- 
dition to  this,  even  when  not  required  by  statute,  it  is  ciis- 
tonuiry  for  the  secretary  or  person  having  the  custod}^  of 
the  seal  to  attest  same  under  his  hand.     Whatever  may  be 


proper  authority :  Solomon's  Lodge 
V.  Montmallin,  58  Ga.  547;  Ang. 
&A.  on  Corp.  §224;  1  Kyd  on  Corp. 


208;  Bankv.  Kortright,  22  Wend. 
348;  Reed  v.  Bradley,  17  111.  .321; 
Flint  V.  Clinton  Co.,  12  N.  II.  434. 


PAETICULAK  CLASSES  OF  INDIVIDUAL  COXVEYAXCES.  2S1 

tlie  law,  a  full  exemplification  of  the  execution  will  ])resent 
all  the  questions  that  can  arise  under  it.  The  seal,  when 
shown  of  record,  should  be  copied  or  described,  and  its  ab- 
sence specifically  noted  as  a  serious  defect.  The  seal  of 
a  corporation,  when  alfixed  to  any  deed  or  contract  by 
proper  authority,'  is  not  distinguishable  in  its  legal  effect 
from  that  of  an  individual,  and  renders  the  instrument  a 
specialt}'."  It  is  the  highest  evidence  of  assent,  and  was 
formerly  the  only  requisite  necessary  to  bind  the  corporation. 
In  a  few  of  the  States,  the  deed  must  be  signed  with  the 
name  as  well  as  sealed  with  the  seal  of  the  corporation.' 
"Where  the  execution  conforms  to  the  law  of  the  State  where 
tlie  laud  conveyed  is  situate,  no  questions  will  probably  arise. 
Where  it  does  not  so  conform,  recourse  must  be  had  by 
counsel,  in  the  absence  of  other  evidences  of  conformity,  to 
the  law  of  the  State  where  the  conveyance  was  executed, 
or  where  the  "  home  oilice"  is  located.  Appended  matter, 
showing  authority,  conformity,  etc.,  should  as  a  rule,  be  fully 
presented.  Where  several  oilicers  sign,  an  acknowledgment 
by  one  only  in  bjhalf  of  the  corjxjration  is  suflicient.*  In 
the  absence  of  statutory  provisions  to  the  contrary,  where 
a  deed,  purporting  to  be  the  deed  of  the  corpoi-ation,  is 
signed  by  its  olficers,  as  such  officers,  and  has  the  corporate 
seal  affixed,  it  is  admissible  in  evidence  as  a  deed  of  the  cor- 
poration, and  is  itself  presumptive  evidence  of  the  regurar 

'  Wlien  tlie  deed  is  shown  to  have  of  tlie  corporation:    Southern  Cal. 

been  duly  executed  b}'  one  having  Colony  Assoc,   v.   Bustana-nte,  53 

authority,  proof  that  the  seal  afHxcd  Cal.  193. 

is  the  corporate  seal  is  unnecessary:  ^Isham  r.  Bennington  Ii-on  Co., 

riiillips  V.  ColTee,  17  111.  154.  l'.»  \t.  3r,l. 

» Clark  r.  Manf.  Co.  of  B,'nt<in,  10  *  M  e  r  r  i  11    r.    Montptniery,  35 

Wend.  250;  lienoLst  r.  CarondcKt,  Midi.  TU.     "  The  olHccr  of  tlu- cor- 

8  Mo.  250.     In  the  abst-nce  of  the  poration    intnistt-d    with    it.s  foni- 

common  seal,  or  of  proof  of  facts  nion  sfjil,  ami  who  huIis  rilifs  Iub 

whence  the  authority  of  the  odicera  name  to  tlie  diH'il  as  the  evidt-nco 

of  a  corixiration  U)  exrculc  a  con-  that   ho   is   the    ])crsiin    who    him 

veyance    may    Ikj    inferred,    Hudi  atli.xed   the   common    wal    tt>   tho 

authority  <  an  only  t>e  (■^t;lbliHhed  same,  Ktands  al.so  in  the  ('hiu'act4.*r 

1»y   resolution  of   the   directirs  or  of  a  NulMcribin^  wiln(>ss  to  the  exo- 

truHte<'«  ent<  p'd  in  tin*  propir  Iwiok  culion  of  the  deed  by  liie  cori»ora- 


2^2 


ABSTKACTS    OF   TITLE. 


and  duly  authorized  execution  of  same.'  The  followinc^  is 
a  good  exani})lo  of  an  abstract  of  execution,  acknowlctlg- 
inent,  and  appendant  matter: 

"  Li  icitncsii  whereof  the  said  Union  Mutual  TJfo  Tm^vr- 
ance  ComjMny  hath  caused  its  Corporate  Seal  to  he  hereunto 
ajixed,  and  these  ^^^'^j^cvr^^  to  he  suhscrihed  hy  John  E. 
De  ^Y^tt,  its  President,  duly  authorised  hy  vote  of  the 
Finance  Committee  of  the  Board  of  Directors  of  said  Cor- 
poration^* a  certificate  of  which  is  hereto  attached,^''  etc. 


Signed: 

"UNION   MUTUAL    LIFE  IN- 
SURANCE COMPANY, 

"  By  JOHN  E.  De  WITT,' 

President^ 


Acknowledged  hy  said  President  as  his  free  and  voluntary 
act  and  deed,  and  as  the  act  and  deed  of  said  Company. 
Certificate  of  acknovoledgrnant  dated  August  10,  1883. 


cion:  and  may  be  examined  bj'  the 
officer  taking  the  proof  to  prove 
tliat  the  seal  affixed  by  him  is  the 
common  seal  of  the  corporation, 
wliose  deed  the  conveyance  or  in- 
strument to  which  it  is  affixed 
purports  to  be."  Willard's  Con- 
veyancing, 393;  Lovett  v.  Steam 
Mill  Association,  6  Paige,  60; 
Johnstm  v.  Bush,  3  Barb.  Ch.  207. 

'  Miners"  Ditch  Co.  v.  Zellerbach, 
37  Cal.  543;  Sawyer  v.  Cox,  63  111. 
130;  Solomon's  Lodge  v.  Montmal- 
lin,  58  Ga.  547. 

"^  A  purchaser  of  land  from  a 
corporation,  being  a  stranger  to 
the  corporation,  is  not  bound  to 
know  that  there  is  a  by-law  of  the 
company  requiring  an  order  of  the 


board  of  directors  to  authorize  a 
sale  of  land  owned  h\  the  com- 
pany. The  rule  is  the  same  where 
a  pu  ■-•chaser  receives  a  bond  from 
a  corporation  for  a  deed  for  land 
purchased,  and  he  will  be  entitled 
to  the  deed  according  to  the  pro- 
visions of  the  bond,  notwithstand- 
ing there  was  no  order  of  the  board 
of  directors  autliori/.ing  the  sale: 
Wait  V.  Smith,  92  III.  385. 

*  It  is  presumed,  when  the  com- 
mon seal  of  a  corporation  is 
affixed  to  an  instrument  together 
with  the  signatures  of  the  proper 
officei-s,  that  such  officers  did  not 
exceed  their  authority:  Kan.sas  v. 
R.  R.  Co.,  77  Mo.  185. 


PARTICULAR  CLASSES  OF  INDIVIDUAL  CONVEYANCES. 


2S3 


APPENDED    IS 

.  Extract  from   Article   9   of   the    By-Laws    of  the     Union 
Mutual  Life  Lnsurance  Coftipany: 

"  The  Finance  Committee  may  authorize  the  foreclosure 
of  mortgages  in  any  manner  provided  hy  the  laws  of  the 
State  or  country  in  which  the  mortijage  property  is  situated 
and  may  direct  the  sale  of  any  real  estate  held  hy  the  Com- 
pany^ or  in  trust  for  the  Company;  and  ichen  they  shall 
direct  any  such  sale  of  property  held  hy  the  Company,  the 
President,  and.  in  his  ahsence  the  Vice  L^resident,  is  author- 
ized to  execute  the  proper  instrument  of  conveyance^ 


Attest: 


JAMES  SLMMOXS, 

Secretary. 


At  a  meeting  of  the  Finance  Committee  of  the  Board  of 
Directors  of  the  Union  Mutual  Life  Lnsurance  Company, 
held  on  August  10, 1883,  the  foregoing  Deed  was  approved^ 
and  the  J*residtnt  directtd  to  execute,  acknowledge  and 
deliver  the  same. 

Attest:  JAMES  SLMMONS,  . 

Secretary  of  the  Finance  Committee. 

As  a  general  rule  tlio  president  of  a  corporation  lir.s 
power  to  bind  it,  within  the  scope  of  its  powers,  and  as  ils 
rules  and  by-hiws  arc  not  usually  open  to  j)ul)lic  iMs|)efti(in, 
particularly  where  the  homo  oftico  is  in  a  distant  State, 
sucli  ruh.'.s  and  by-laws  can  have  no  a]t|)n'ciablo  cd'cct  upcn 
pei*sons  liavin<i;  no  knc^wlrd^re  of  their  ('xistciicc ;  and  iiot- 
witiistanding  such  olliccr  may  have  no  power  to  mako  con- 
tracts or  conveyances  under  the  private  rules  and  reijula- 
tions  of  the  corporation,  yet,  as  to  stran^n-rs,  without 
notice,  it   will   be  estopi)ed  to  iU-uy  tin-  power  of  its  olTkers 


2S4  ABSTRACTS    OF    TITLE. 

to  piM-forni  the  specific  acts.'  As  a  matter  of  safety,  lunv- 
ever,  where  no  authority  speciiically  appears  from  the  in- 
strument itself  or  matter  ai)pen(lcd  thereto,  a  requisition 
shoukl  be  made  for  further  information. 

§  18.  Record  of  Seal.  In  all  the  examples  given  in 
this  chapter,  the  seals  have  been  shown  as  they  were 
appended  to  the  original  instruments,  but  not  infrequently 
the  defects  of  the  record  will  render  this  im])()ssible. 
AVhere  the  seal  has  not  been  recorded,  but  only  alluded  to, 
the  suggestion,  as  made  upon  the  record,  should  be  shown 
as  it  ai)pears,  thus :  "  Seal  is  recorded, '  Corporate  Seal ;'  "  or 
should  the  record  merely  disclose  a  scrawl,  then  the  scrawl 
may  be  shown  with  accompanying  Avords,  if  any.  In 
recording  an  instrument  purporting  to  be  executed  by  a 
corporation,  in  the  absence  of  statutory  requirements  to  the 
contrary,  the  corporate  seal,  if  attached  thereto,  may,  it 
seems,  be  represented  by  a  scrawl,  d^fac  siiaile  of  the  seal  or 
device  not  being  absolutely  necessary." 

§  10.  Coiiveyauces  by  Incorporated  Religious  Socie- 
ties. The  class  of  corporate  conveyances  to  which  allusion 
has  been  made  in  the  preceding  ]3aragraphs  are  those 
executed  by  public  corporations  or  private  corporations 
organized  for  business  purposes.  There  remains,  however, 
another  class  of  private  corporations  which  occupy,  so  far 
as  regards  their  legal  corporate  existence,  a  peculiar  position 
in  commercial  circles,  and  these  are  incorporated  religious 
and  kindred  societies  not  organized  for  purposes  of  pecuniary 
gain.  The  legal  title  to  the  property  held  by  these  societies 
in  their  corporate  capacity  is  usually  vested  in  trustees,  and 
conveyances  by  such  societies  are  usually  effected  through 
the  media  of  these  trustees.  More  than  ordinary  care 
should  be  observed  in  abstracting  such  conveyances,  and  a 
number  of  the  incidents  that  do  not  call  for  explicit  mention 
in  ordinary  deeds,  must,  in  this  class  of  instruments,  be  set 

'  Life  Ins.  Co,  v.  White,  lOG  111.  -  Illinois,  etc.,  R.  R.  v.  Johnson, 

67.  40  111.  35. 


PAKTICCLAR  CLASSES  OF  INDIVIDUAL  CONVEYANCES.  2^5 

out  in  full.  The  method  of  conveyance,  if  pointed  out  or 
prescribed  by  the  statute  is  of  the  essence  of  the  deed,  and 
where  the  abstract  does  not  disck^se  a  statutory  coni])liance, 
it  shoukl  be  sent  back  to  the  examiner  for  further  investi- 
gation. The  sufficiency  of  a  deed  under  the  statute  of  Illi- 
nois— and  the  same  requisites  are  essential  in  all  other  States 
whose  statutes  have  been  examined — requires  that  the  indi- 
vidual names  of  the  trustees  should  be  inserted  as  grantoi's, 
with  the  addition  of  words  descrij)tive  of  the  character  in 
which  they  act.  The  granting  clause  should  witness  that 
the  said  grantors,  as  trustees  of,  for,  and  by  the  direction  of, 
the  society  for  which  they  purport  to  act,  for  the  consider- 
ation, do  bargain,  etc.  The  attestation  clause  should  be, 
that  the  said  tirst  parties,  as  such  trustees,  "have  hereunto 
set  their  hands  and  seals,"  or  their  official  style  should  be 
added  to  their  signatures,  and  the  instrument  should  be 
acknowledged  by  the  individuals  in  their  proper  character 
as  trustees.' 

§  20.  Heirs  at  Law.  The  unsatisfactory  character  of 
conveyances  purporting  to  be  made  l)y  the  heii*s  at  law  of 
a  deceased  per.son  h.'is  already  been  shown.  The  recital  in  a 
deed  that  the  parties  making  it  are  the  heirs  at  law  of  a  for- 
mer owner,  is  no  evidence  of  the  fact  recited,  except  as 
against  the  parties  to  the  deed  and  their  privies,  and  wlirrc 
the  abstract  furnishes  no  information  other  than  that  con- 
tained in  the  deed  to  ]m)ve  the  character  of  the  ])artit's, 
death  of  the  anc 'stor,  etc.,  a  requisition  sliould  aluavs  bo 
made  by  counsel  I'oi'  fui-thcr  information,  which,  unless  a 
probate  is  liad,  usually  consists  of  affidavits  in  supp<»rt  of  the 
facts,  made  by  persons  wlio  are  sup))osed  to  be  cognizant  of 
them.'  liut  other  grave  ipiestions  may  arise  from  convcv- 
ances  in  <l<!rogation  of  the  rights  of  such  heirs.  .  The  po.s.ses- 
sion  of  kind  by  a  person  at  the  time  of  his  death  is  jtrhmt 
/"^Z^?  evidfmce  of  ownership  at  the  time,  and  a  snbse(pier\t 
purchas(!rof  the  legal  title  will  be  conclusively  presumed  to 

'  I>»mharil   v.    Sinai    Cuiigrt-ga-  '  Yah(K»lu.  »'t<\,    Miuinjj   Co.    i'. 

tion,  61  III.  177.  Irby,  lU  Ua.  -ITU. 


280  ABSTRACTS   OF   TITLE. 

know  tliat  whatever  rights  such  deceased  person  liad  in  the 
hmd,  nut  disi)osed  of  by  will,'  and  of  an  inheritable  character, 
devolved  on  his  heirs,  and  his  possession  being  constructive 
notice  of  his  rights  at  the  time  of  his  death,  it  becomes  the 
duty  of  such  purchaser  to  make  all  necessary  inquiries  to 
ascertain  the  extent  of  the  interest  of  such  heirs.'' 

§  21.  Post  Obit  Conveyances.  The  conveyance  by  an 
heir  apparent  of  his  expectancy  in  land  OAvned  by  his  living 
ancestor,  which  would  descend  to  him  if  he  survived  his 
ancestor,  and  the  latter  should  die  intestate  owning  the  same, 
is  a  conveyance  of  a  mere  naked  possibility  not  coupled  with 
an  interest  and  passes  no  estate  or  interest  in  the  land. 
Such  a  title  can  not  operate  to  defeat  the  grantors  own  title 
afterward  acquired  by  descent,  except  by  way  of  esto])pel 
and  if  the  conveyance  contained  no  covenant  of  warranty, 
such  grantor  is  not  precluded  from  asserting  an  after-acquired 
title."  But  where  a  conveyance  of  this  character  is  made 
with  covenants  of  warranty,  it  will  operate  to  pass  the  title 
by  estoppel  if  the  land  descends  to  the  heir.' 

§  22.  Conveyances  by  Delegated  Authority.  Every 
deed  executed  by  virtue  and  in  pursuance  of  a  power,  should 
bear  upon  its  face  a  recital  of  authority,  but  deeds  purport- 
ing to  be  the  direct  act  of  the  grantor  though  jDcrformed  by 
an  attorney  in  fact  are  sufficiently  formal  if  the  execution 
and  authentication  affirmatively  sho\v  the  fact.  The  descrip- 
tion of  the  parties  grantor  should,  in  all  cases  of  delegated 
authority,  be  taken  from  the  execution  and  not  from  the 

'  See  "  Descents,"  infra.  Boynton  v.  Hubbard,  7  Mass.   112* 

-  Tlie  above  rule  was  applied  in  a  In  this  case  a  covenant  was  made 

case  where  a  person  holding  a  bond  by  an  heir  to  convey,  on  the  death 

for  a  deed  died,   and   his  widow  of  his  ancestor,  if  he  should  survive 

ujxjn  payment  of  the  sum  due  on  him,   a  certain  undivided  part  of 

the  land,  procured  the  legal  title  what  should  come  to  him  by  de- 

to  be  made  to  her,  and  then  con-  scent,  and  same  was  held  to  be  void 

veyed  same  to  a  third  person,  who  at  law  as  well  as  in  equity. 

had  notice  of  the  equitable  title  of  ••  Rosenthal  v.  Mayhugh,  33  Ohio 

the  heirs.    McVey  v.  McQuality,  97  St.  158;   Bohon  v.  Bohon,  78  Ky. 

111.  93.  408. 
3Hai-t  V.  Gregg,  32  Ohio  St.  502; 


PAKTICCLAR  CLASSES  OF  INDIVIDUAL   CONVEYANCES.  2S7 

premises,  which  as  a  rule,  does  not,  and  as  a  matter  of  form, 
should  not.  show  the  vicarious  act.  The  recital  of  acknowl- 
edgment should  also  be  drawn  to  show  the  substitution  of 
persons.  Aside  from  these  two  points  the  abstract  of  a  deed 
executed  by  an  attorney  in  fact  differs  in  no  material  respect 
from  one  executed  by  the  grantor  -in persona tn.  The  points 
mentioned  may  be  shown  in  this  manner : 

Jo/in  S/nif/i,  hy  William  ^       Warranty  Deed. 
Strong,  his  attorney  in  |       Dated,  etc. 
fact,  *         *         ^         ,,         ,,         * 

to  I       ^         ^         ^         ii         ^         ^ 

Janws  Robinson.       J 
Acliioidedfjcd  June  1,  1SS2,  hy  William  Sfronr/,as  the  act 
and  deed  of  said  John  Smith. 

Erroneous  or  imperfect  execution  or  acknowledgment 
must  be  indicated  in  the  manner  already  ])ointed  out.  The 
instrument  is  properly  and  legally  executed  if  it  bears  the 
name  (signature)  and  seal  of  the  grantor  showing  the  pro- 
curement of  the  attorney,  and  purporting  to  be  the  act  of 
the  principal;  but  in  making  the  acknowledgment,  the  attor- 
ney, being'the  person  who  executes  the  instrument,  must 
acknowledge  it;  3'et  this  he  does  as  and  for  his  principal. 
As  to  what  constitutes  a  proper  signing  there  is  some  con- 
flict of  authority,  the  earlier  cases  holding  it  to  be  immate- 
rial whether  the  attorney  sign  "A,  attorney  for  IJ,"  or  "B, 
by  his  attorney  A,"  '  on  the  theory  that  no  particular  form 
of  words  is  necessary  to  bind  the  princ-i|)al,  ])i'(>vided  the 
agency  of  the  attorney  appears  from  the  deed  itself.'  It  is 
now  well  estal)lished,  however,  that  a  conveyance  made  by 
an  attorney  must  be  in  the  nanui  of  the  principal,  and  pur- 
port to  be  executed  by  him,'  and  where  the  agent  assumes 
either  to  grant  or  to  execute,  as  where  ho  signs  and   seals, 

•  Jonns  V.  Carter,  4    Ilcn.  &  M.  •  M.iu'ill  »'.  IlinHdnl.-.  0  Coiiii.  KU 

1S4;  MontKoriK-ry  r.  Dorion,    7    N.  Worrall  r.  Mumi.  1  S.'l.l.  -JJU. 

n.  475;  Wilk.-a   v.    IJ.u-k,    2   E;iht,  '  l*.iis<.nn.aii  r.  IMi-akl.-y.  11  III. 

142.  \'>\  Kiwtll   V.   bliaw,   10  Masa.  42; 


2S8  ABSTRACTS    OF    TITLE. 

altli(^iiL;ii  (loscril)inii;'  liis  oflico.  the  dfcd  will  bo  void  as  to 
the  ])riiic'ii)al.'  It  has  also  been  held  that  sig'ning  the  prin- 
cipal's name,  but  making  no  mention  of  the  attorney,  is  not 
a  valid  execution."  It  would  seem,  therefore,  that  in  all 
conveyances  by  attorneys  in  fact,  both  the  nanie  of  the 
principal  and  of  the  attorney  must  substantial!}"  api)ear  in 
the  execution  of  the  deed,  showing  not  only  that  the  grant 
and  seal  are  those  of  the  principal,  but  by  Avhom  these  acts 
are  done;*  and  wh6re  there  are  two  grantors,  and  one  of 
them  acts  as  the  attorney  in  fact  of  the  other,  he  must  sub- 
scribe his  name  twice,  once  as  attorne}''  in  fact  for  the  other, 
and  once  for  himself.  One  signature  and  a  second  seal  is 
not  equal  to  a  second  subscription." 

It  is  not  necessary,  however,  that  any  particular  form  of 
words  be  used  to  render  the  instrument  valid  and  binding 
upon  the  principal,  provided  it  shows  upon  its  face  that  it 
was  intended  to  be  executed  as  the  deed  of  the  principal, 
and  that  the  seal  affixed  is  his  seal  and  not  that  of  the  attor- 
ney; and  it  has  been  held,  that  where  the  deed  is  executed 
for  several  parties,  it  is  not  necessary  to  aflix  a  separate  and 
distinct  seal  for  each  if  it  appears  that  the  seal  affixed  was 
intended  to  be  adopted  as  the  seal  of  each  of  the  parties.^ 

§  23.  PoAvers  of  Attorney.  Immediately  following  the 
al)stract  of  every  deed  purporting  to  be  made  by  the  procure- 
ment of  an  attorney  in  fact,  should  a])pear  the  warrant  or 

Tliurman  v.   Cameron,  24  Wend.  cipal  by  his  attorney,  and  that  the 

(N.  Y.)  90;   Stinchfiold  v.   Little,  principal  covenants,  etc.,  while  in 

1  Me.  231;  Hale  v.  Woods,  10  N.  the  testimonium  clause  it  is  allo<red 

H.  470.    Less  strictness  is  required  that  A.  B.  (the  agent),  as  the  attor- 

whnre  the  instrument  is  not  under  ney  of  the    principal,  has  set    his 

seal,  it  being  sufficient,   in  such  hand  and  seal:  Townscnd  v.  Cor- 

case,  if  the  intent  to  bind  the  princi-  ning,  23  Wend.  435. 

pal  appears  in  any  part  of  the  in-  '■'  Wood  v.  Goodridge,    6    Cush. 

strument:  Townsend  u.  Hubbard,  4  117. 

Hill  iN.  Y.),  351.  «See  3  Wash.  Real  Prop.,  *573, 

'  Fowler  r.  Slioarer,  7  Ma,ss.  14;  and  cases  cited. 
Stater.  Jennings,  10  Ark.  428:  Mc-  ■'Meagher  v.  Tliompson,  49  Cal. 

Donald  17.  Bear  River  Q).,    13  Cal.  189. 

235;  and  this,  even  though  in  the  'Townsend  v.   Hubbard,  4  Hill 

body  of  the  instrument  it  is  stated  (N.  Y.)  351. 
that  it  is  the  agi'cement  of  thepriii- 


PAKTICULAR  CLASSES  OF  INDIVIDUAL  CONVEYANCES.  2S9 

power  which  authorized  the  act;  for  an  unauthorized  deed 
would  be  void  for  all  purposes,  and  the  proof  of  this  j)ower 
can  only  be  shown  by  an  instrument  executed  with  all  the 
formalities  necessary  to  a  valid  deed  of  conveyance.'  The 
instrument  usually  recites  tlie  scope  of  the  attorney's  powere, 
yet  even  where  it  is  deficient  in  some  particular,  others,  which 
are  necessaiy  to  the  proper  exercise  of  those  expressly  enu- 
merated, will  be  implied  as  incidental  thereto;  as,  where  a 
power  is  expressly  given  to  sell  or  lease  the  property  of  the 
principal,  a  power  to  contract  to  sell,  as  well  as  to  convey  and 
transfer,  will  be  implied.'  The  right  of  revocation  is,  as  a 
rule,  always  reserved,  but  this  is  a  right  incident  to  the  power 
given,  and  a  princi])al  may  always  revoke  the  autliority  of 
his  agent  at  his  mere  pleasure  without  a  reservation  of  sucli 
express  right,  or  even  though  the  power  may  be  expressly 
declared  to  be  irrevocable.'  The  only  exceptions  to  this  rule 
are  when  the  authority  or  poAver  is  coupled  with  an  interest, 
or  where  it  is  given  for  a  valuable  consideration,  (»r  wIhmv  it 
is  part  of  a  security,  in  all  of  which  cases  it  is  irrevocal>le, 
whether  so  expressed  or  not.*  Powers  of  attorney  must  be 
strictly  construed,  yet  the  rule  does  not  require  a  construction 
that  will  defeat  the  manifest  intention  of  the  parties,  and 
where  such  intention  fairly  appears  from  the  language  used, 
it  must  prevail,'  but  the  authority  can  not  bo  extended  be- 
yond that  which  is  clearly  given  in  terms,  or  which  is  neces- 
sary and  ])roper  for  carrying  the  authority  given  into  full 
execution."     la  this  respect  there  is  a  marked  dillerencc  as 

'  Fire  Ins.  Co.  v.  Doll,  35  Md.  «9;  •  Pool  v.  Tottor.  nn  III.  rm.    Tims, 

Watson   V.    Sherman,    84   III.    2(\',i;  a   iM)\\t'r   of    attorn«'y   jointly    t-x- 

Clark  V.  Graham,  0  Whoat.  (U.  S.)  CH-utod  by  im.sband  and  wiff  for  tho 

577;  Videau  v.  Griflin,  21  C'al.  3H9.  sale  of  all  of  tlieir  property,  and  in 

♦Ilumstrcet  v.    Burdick,   90    III.  whirh  the  words,  "-'wf"  "ours"  etc., 

4-14.  are  ox«-luMivi'ly  us«-d,  ha.s  lavn  held 

•Walker  r.   Deni.son,  W  III.  112;  insuHicient  to  authori/.u  a  sale  of 

Brown  r.  I'forr,  38  Cal.  550.  the  individual   itr«)|M-rty  of  eitlu'r, 

*  Walk<-r  V.  Denison,  HO  III.  M2;  or  at  h-Anl  in  the  al>sence  of  proiff 

fiiUH-rtu.  Holmtw, 'H  III.  51M;  Hrown  of  the  n(in-exi.Ht<'n*'e  of  joint  |irop- 

r.  rforr,  IWCal.  550.  erty:     LKxlgc  v.  liopkiuH,  IJ  NVi.H. 

Mlemstreitf.  Hurdi.-k,  90  III.  Ml.  030. 
19 


200  ABSTRACTS    OF   TITLE. 

C()m[»are(.I  with  })o\vei's  of  a})|)ointiiU'iit  created  l)y  deeds  and 
wills,  and  powers  introduced  in  connection  with  uses.  The 
formal  requisites  to  be  observed,  a})art  from  such  as  are  inci- 
dent to  all  other  sealed  instruments,  are  the  constituent 
words,  which  are  "  make,  constitute  and  ap])oint,"  the  powers 
delegated,  and  if  desired,  the  reservation  of  the  right  of  rev- 
ocation, and  the  power  of  substitution,  if  any  is  given.  The 
recital  of  the  power  always  calls  for  minuteness  in  transcrip- 
tion, particularly  when  coupled  with  an  interest  or  created 
upon  a  valuable  consideration,  and,  as  a  rule,  should  be  ren- 
dered with  literal  fidelity.  The  arrangement  of  the  synopsis 
follows  the  instrument.     An  example  is  appended: 

John  Smith,  I 

,  [      Power  of  Attorney. 

TT--77-        o,  1      Dated,  etc. 

.  II  illiam  otrang.  2^.     '  ^         ^         ^ 

First  ])arty  makes,  constitutes  and  apjpoints  second  party 
his  true  and  lawful  attorney,  for  him  and  in  his  narne,  place 
and  stead,  to  \Jiere  follows  the  special  purpose  of  the  power, 
literally  rendered.'] 

Fall  poioer  of  substitution  and  revocation. 

Acknowledged,  etc. 

An  unexecuted  power,  if  still  subsisting,  should,  as  a  rule, 
be  set  out  in  full,  though  many  examiners  show  such  instru- 
ments only  by  way  of  note.  This  latter  method  may  be  re- 
sorted to  with  propriety  only  in  a  few^  instances,  and  unless 
there  has  been  an  implied  revocation,  as  where  the  constit- 
uent has  afterward  made  conveyance  himself,  or  where 
there  has  been  an  expiration  by  limitation,  or  some  other 
circumstance  of  like  character,  such  a  course  is  not  recom- 
mended.    The  following  will  serve  to  illustrate : 

Note  :  In  Booh  20,  page  168,  we  find  recorded  a  power  of 
attorney  from  Thomas  J.  Walsh  to_  Austin  Bierhower,  author- 
izing him  to  sell  and  convey  the  North  East  qiiarter  of  Sec- 
tion 13,  aforesaid  {and  other  property^,  hut  as  no  action  {ap- 
pearing of  record)  has  heen  had  under  said pxnoer  {as  regards 
the  premises  in  questio7i)  we  do  not  shoio  it  herein. 


PARTICULAK   CLASSES   OF    INDIVIDUAL   CONVEYANCES.       *2*.tl 

§  24.  Revocations.  The  recall  of  a  power  or  authority 
conferred,  or  the  vacating  of  an  instrument  previously  made, 
is  called  a  revocation.'  A  power  of  attorney  may  be  revoked 
in  a  variety  of  ways;  as  by  the  death  of  tlie  principal,  which 
operates  as  a  revocation  of  every  power  uncoupled  with  an  in- 
terest;' the  marriage  of  the  principal,  the  power  having  been 
given  while  he  was  a  single  man;'  a  conveyance  by  the  prin- 
cipal of  the  subject-matter  of  the  power  before  the  agent 
has  had  an  opportunit v  to  dispose  of  if  But  the  giving  of  a 
second  power  to  another  agent,  without  specially  revoking 
the  first,  would  not  act  as  a  revocation,  and  if  either  power 
is  executed,  both  w^ll  be  exhausted.'  In  the  foregoing 
instances  the  revocation  occurs  by  operation  of  law. 
The  principal  may  revoke  by  a  special  instrument  of  rev- 
ocation, which,  when  recorded  with  the  power,  will  oper- 
ate as  constructive  notice  of  such  fact.  An  unexercised 
power,  followed  by  revocation,  sheds  no  light  on  the  title, 
and  may,  with  propriety,  be  disregarded,  but  if  it  should  bo 
deemed  desira1)le  to  show  same,  a  brief  mention  among  the 
appendices  would  seem  to  be  all  that  is  required. 

It  is  important  that  sufficient  evidence  should  always  be 
provided  as  to  the  continuance  of  the  })ower  at  the  time  of 
its  exercise.  An  unrevoked  ])ower  duly  recorded,  furnishes 
sufficient  evidence  as  far  as  it  goes,  but  unless  the  abstract 
also  discloses  the  fact  tiiat  the  principal  was  living  at  such 
time,  or  had  not  been  subjected  to  the  disability  of  bank- 
rui>tcy  or  other  disqualifying  cause,  prudence  would  suggest 
that  an  inquiry  in  jxiis  l)e  made  to  ascertain  sucii  facts. 

^  25.  Substitution.  It  is  a  cardinal  nde  that  a  dele- 
gat<Kl  power  can  not  be  delegate(l,  but  in  its  a]>j)lication  to 
])owers  of  attorney  it  is  somewhat  restrictetl,  jis  wIkmi  the 
instrument  contains  a  special  power  of  substitution  the 
power  conferred  may  be,  and  often  is.  deh^^'-ated  to  another.' 

'2  IVm.  Law  Dirt.  177,  ♦  Walker  r.   n.-niw>n,  H(5  III.  1 IJ. 

'  nUiyUm  r.  Mi-rntt.  W  Mins.  3M:  •  ("iiHluimn  r.  fflov.T,  11  111.  (KK). 

Davwr.  SavinKH  nank,  40  V't.  TiH.  'SUtry  Ag.,  g  la. 
•Ilenderwjn  i\  TukI,  tO  Tex.  0:J7. 


292  ABSTRACTS    OF   TITLE. 

§  2G.  Conveyances  in  Trnst.  Trust  doeils  were  ft)i'- 
inerly  of  very  coiiiiuoii  occurrence,  but  are  now  rarely  met 
Avitli,  save  iu  a  few  States  wliei'e  mortii'afjes  are  made  in 
that  form.  They  were  iised  to  convey  the  benelicial  interest 
to  persons  who  were  inca})able  of  hohling  tlie  h'<^al  title,  or 
in  whom  it  was  not  desirable  to  have  the  legal  title  vest. 
"With  the  gradual  disuse  of  uses  and  trusts  in  some  States, 
and  their  summary  abolition  in  others,  conveyances  of  this 
character  have  become  infrequent,  while  no  estate  or 
interest,  legal  or  equitable,  Avill  vest  in  the  trustee  under 
the  statutes  of  many  of  the  States,  but  the  beneficiary  talces 
the  entire  legal  estate  of  the  same  quality  and  duration,  and 
subject  to  the  same  conditions  as  his  beneficial  interest.' 

The  character  of  the  instrument,  as  well  as  its  effect,  may 
be  readily  determined  by  inspection;  if  it  imposes  on  the 
trustee  active  duties  with  respect  to  the  trust  estate,  such  as 
to  sell  and  convert  into  money,  or  to  lease  the  same  and 
collect  the  rents,  pay  taxes,  etc.,  and  to  pay  the  net  proceeds 
to  the  beneficiary,  it  creates  an  active  trust  which  the  statute 
does  not  execute,  but  if  there  is  simply  a  conveyance  to  the 

'This  applies  more  particularly  thesameforthebenefit  of  any  mar- 
to  "dry"  or  passive  tinists.  Ex-  ried  woman,  or  for  any  of  the  pur- 
press  trusts  are  still  generally  per-  poses  and  within  the  limits  of  the 
mitted  to  be  created  for  the  follow-  statute  prescribing  the  nature  and 
ing  purposes:  quaUty  of  estates. 

1.  To  sell  lands  for  the  benefit  5.  For  the  beneficial  interests  of 
of  creditors.  any  person  or  persons,  when  such 

2.  To  sell,  mortgage,  or  lease  trust  is  fully  expressed  and  clearly 
lands  for  the  benefit  of  legatees,  defined  ui^on  tlie  face  of  the  iiistru- 
or  for  the  purpose  of  satisfying  ment  creating  it,  subject  to  the 
any  charge  thereon.  limitations,  as  to  the  time  and  the 

3.  To  receive  the  rents  and  profits  exceptions  thereto,  relating  to  lit- 
of  lands  and  apply  them  to  the  use  erary  and  charitable  coxporations, 
of  any  person   during  the  life  of      prescribed  by  the  statute. 

such  person,  or   for   any   shorter  Trusts  resulting  from    implica- 

term,  subject  to  the  rules  prescribed  tion  of  law  are  always  recognized, 

by  statute  fixing  the  quantitj'  and  but  the  doctrine  lias    been    very 

duration  of  estates.  much  circumscribed,  as  described 

4.  To    receive   the    rents    and  in  the  preceding  chapter, 
profits  of  lands  and  to  accmnulate 


PAETICULAR    CLASSES    OF    INDIVIDUAL   CONVEYANCES.       li'Jo 

trustee  for  the  use  of,  or  upon  a  trust  for,  another,  and  noth- 
ing more  is  said,  the  statute  immediately  transfers  the 
legal  estate  to  the  use,  and  no  trust  is  created,  although 
express  words  of  trust  are  used. 

"When  conveyances  in  ti-ust  are  allowed,  the  nature, 
quality,  and  extent  of  the  trust  should  be'  very  explicitly 
stated;  while  in  States  where  only  a  few  enumerated  express 
trusts  are  recognized,  every  part  of  the  instrument  necessary 
to  bring  it  within  one  of  the  classes  named  in  the  statute 
must  be  shown.  The  trust  is  ordinarily  suihciently  disclosed 
by  the  recitals  of  the  habendum,  but  where  there  is  a  power 
of  appointment,  and  certain  reservations  for  various  ])ur- 
poses,  a  very  full  synopsis  of  every  jiart  of  the  deed  will  be 
absolutely  necessary  for  a  proper  understanding  of  it.  In 
the  latter  case  there  should  be  shown  the  special  matter  of 
inducement  as  recited  in  the  premises;  the  grant,  the 
habendum,  the  reservation,  explicitly  rendered,  the  enumer- 
ation of  the  trusts  and  powers,  and  the  ])ower  of  appoint- 
ment, or  successor  in  trust,  if  nametl.  IS'o  particular  form 
of  words  is  requisite  to  create  a  trust,  the  intent  only  being 
regarded  by  courts  of  equity,'  yet  the  lial)endum  usually 
makes  a  formal  recital  after  the  preliminary  words  ''  to  luive 
and  to  hold,"  etc.,  by  continuing,  "in  trust  nevertheless,"  or 
some  similar  expression.  Where  a  ti-u.-rt  is  intended  i>y  a 
conveyance,  but  fails  entirely,  so  that  the  grantee  takes  no 
estate  in  the  land  under  the  conveyance,  it  may  nevertheless 
create  in  him  a  valid  power  in  trust,"  the  legal  title  remain- 
ing in  tlie  grantor.'  "Where  the  (U'i'd  creates  a  valid  trust, 
the  entire  estate  vests  in  the  trustee,  sulijeet  oidy  to  the 
execution  of  the  trust,  e.\'cej)t  as  otherwise  jjrcjvided;  and 
where  the  deed  gives  a  ])ower  of  salt?  to  the  trustee  at  the 
refjuest  an<l  for  the  benelit  of  the  bene'lieiaiy  under  tin* 
deed,  no  power  of  revocation  being  reserved,  no  estate  in 
the  premLses  is  left  in  the  grantor,  which  is  capable  of  U'ing 

'  Fwher  f .  Fiflil,  10  Johns.  |!i|.  '  Tliin  is  now  tlio  geiierul  hUiIu- 

•  FullowB  V.  llifrinuiiti,  4  Liiim.       tory  doitriiiu. 
(N,  Y.)  230. 


294 


ABSTRACTS    OF   TITLE. 


transferred.'  Where  the  legal  title  is  \'ested  in  a  trustee, 
nothing  short  of  reconveyance  can  place  the  same  back  in 
the  grantor  or  his  heirs,  but  under  certain  circumstances 
such  reconveyance  will  be  presunietl  without  direct  ])roof  of 
the  fact.'  Trust  estates  are  subject  to  the  same  rules  as 
legal  estates  in  every  case,  dower  excepted.' 

§  27.  Declaration  of  Trust.  To  estal)lish  a  trust,  the 
evidence  must  all  be  in  writing,  and  sufficient  to  show  that 
there  is  a  trust,  and  what  it  is,^  and  where  land  has  been 
conveyed  by  a  deed  al)Solute  in  form  but  designed  sim])ly 
for  a  habendum  in  trust,  the  grantee  may  make  a  valid 
admission  of  the  trust  in  a  separate  instrument.'  Such  in- 
struments are  known  as  declarations  of  trust,  and,  unless 
required  by  statute,  need  not  be  by  deed,  but  any  writing 
subscribed  by  the  trustee  will  be  sufficient  if  it  contain  the 
requisite  evidence. °  Although  it  is  not  essential  that  the 
writing  by  which  the  trust  is  manifested  and  i)roven  should 
be  in  any  particular  form,  it  is  customary  for  the  trustee  to 
declare  same  in  a  formal  document,  reciting  the  matter  of 
inducement,  declaring  the  nature  of  the  trust  estate,  and 


1  Marvin  v.  Smitli,  46  N.  Y.  571; 
Leonard  v.  Diamond,  31  Md.  536. 

2  Kirkland  v.  Cox,  94  111.  400;  re- 
versing 81  111.  11;  80111.  67. 

3  Danforthf.  Lowry,  3  Haywood 
(N.  C),  68. 

*Cook  V.  Ban-,  44  N.  Y.  156; 
Steere  v.  Steere,  5  Johns.  Ch.  355; 
1  Green.  Cruise,  335.  But  this 
does  not  apply  to  resulting  trusts, 
which  may  be  established  bj-  pai'ul: 
Faris  v.  Dunn,  7  Bush  (Ky.), 
276;  McGinity  v.  McGinity,  63  Pa. 
St.  38. 

*  Elliott  V.  Armstrong,  2  Black f. 
198;  McLaui-ie  v.  Partlow,  53  111. 
340;  Cook  v.  Barr,  44  N.  Y.  156; 
Fast  V.  MePherson,  98  111.  496;  or 
by  the  pleadings  in  a  chancery 
suit:     Ibid. 

«  Cook  V.  Barr,  44  N.  Y.  156.    By 


the  English  statute  of  29  Charles 
II,  Chap.  3,  §  7,  it  was  enacted 
"  that  all  declarations  or  creations 
of  trust  or  conlidence  of  any  lands, 
tenements  or  hei'editaments,  shall 
be  manifested  or  proven  by  some 
writing,  signed  by  the  pai-ty  who 
is  by  law  enabled  to  declare  such 
trust,  or  by  his  last  will  in  writing, 
or  else  they  shall  be  utterly  void 
and  of  none  effect."  This  statute 
provided,  not  for  the  creation  of 
trusts,  but  for  proving  them,  and 
is  the  basis  of  American  statutes 
on  the  same  subject.  Tliough  a 
trust  of  lands  can  not  be  estab- 
lished by  parol,  yet  if  the  ti-ustee 
execute  the  trust,  he  is  bound  by 
the  act:  Elliott  r.  Morris,  1  Harp, 
Eq.  281. 


PAKTICULAE  CLASSES  OF  INDIVIDUAL  CONVEY AXCES.  205 

frequently  covenanting  against  his  own  act?,  and  for  con- 
veyance to  the  beneticiarv.  Whatever  may  be  the  form  of 
the  instrument,  the  nature  and  quality  of  the  trust  de- 
clared, and  the  terms  and  conditions  upon  which  it  is  lield, 
should  sufficiently  ai>j)ear  to  sliow  the  full  intention  of  the 
parties  as  manifested  by  the  instrument.  An  illustration  is 
herewith  given: 

Andreio  Baxter,  "]        Declaration  of  Tnifit. 

Trustee,  '        Dated,  etc.     *     *    *    * 

to  j        liecites,  that  Charles  De7^- 

Whom  it  maij  concern :  j  ton,  Inj  deed  bear'nuj  even 
date  herewith,  in  consideration  of  $1,500.00,  conveyed  to  said 
frst  party  in  fee  simpU  the  following  descrihed  premises,  to 
wit:  [descrihiiKj  same']  as  hy  said  deed  will  more  f  idly  appear. 
And  that  said  first  party  has  '■^  this  day^'  executed  a  fid 
delivered  to  said  Charles  Denton  a  mort/jage  upon  said  prem- 
ises, as  collateral  security  fur  the  payment  of  his  hand  for  the 
payment  of  $1,000.00  [stating  the  terms']  being  jjart p>urchase 
money  expressed  in  said  deed. 

Therefore,  said  first  party,  mal'cs  hioion,  and  declares,  that 
said  premises  so  conveyed  to  him,  he  now  hohIs,and  will  con- 
tinue to  hold,  in  trust  only,  for  the  use  and  benefit  of  George 
Z>eigler,  son  and  heir  at  law  of  Henry  Zeigler,  deceased,  and 
that  he  has  no  beneficial  interest  therein,  except  what  mat/ 
arise  by  legal  or  equitable  implication  from  the  circumstances 
attending  the  execution  of  said  nwrtgage. 

Said  first  party  further  admits  that  the  residue  of  the  con- 
sideration money  expressed  in  said  deed  to  him,  to  wit:  th< 
sum  of  $500.00,  was  paid  by  William  Zeigler,  for  the  bent  fit 
of  said  George  Zeigler. 

And  said  first  party  covenants  to  and  with  said  William 
Zeigler  and  George  Zeigler,  that  he  will  convey  said  premises 
by  ^^ good  and  sufficient''''  deed,  to  said  Geoj*gc  Zeigler,  or  his 
assigns,  as  he  or  they  may  direct,  whenever  and  as  soon  as  said 
mitrtgage  shidl  have  been  paid  ojf  and  discharged,  or  otherwise 
fully  secured  to  said  first  party,  and  that  free,  clear  and 
dijicharged from,  all  and  every  incnmbranee  therein  by  sui</ 
first  jjarty. 

J'lrxt  i>arti/  further  rovoiant.s  ognntsf  his  mrji  ur/s. 


29G  ABSTRACTS    OF   TITLE. 

§  2S.  IxcMuoval  or  Substitution  of  Tnistoes.  "Where  a 
trustee  is  ilo;ul,  the  trust  bein^  still  .alive  aiitl  unexecuted,  a 
court  of  ecjuity  Avill  carry  it  out  if  necessary,  through  its  OAvn 
ofhcers  and  agents,'  and  may  appoint  a  new  trustee,""  and  it 
seems  that  in  some  States,  even  where  the  trust  deed  con- 
tains a  power  of  appointment,  in  the  event  of  the  death  of 
the  trustee,  Avithout  executing  the  trust,  the  cestui  que  truat 
can  not  appoint  a  new  trustee,  but  the  exercise  of  this  right 
devolves  exclusively  on  a  court  of  chancery."  A  trustee 
may  always  be  removed  in  the  discretion  of  the  court  upon 
proper  cause  shown.* 

§  29.  Kesigiiatioii — Refusal  to  Act.  A  trustee  can  not 
divest  himself  of  the  obligation  to  perform  the  duties  of  his 
trust,  "without  an  order  of  the  court,  or  the  consent  of  all 
the  ccstuis  que  trust,"  and  where  he  refuses  to  act,  equity 
Avill  compel  him  to  do  so,  or  appoint  a  suitable  person  in 
his  place.' 

'  Batcsville  Institute  v.    Kauff-  abuse    of    discretion:     Bailey    v. 

man,  18  WaU.  120.     It  is  a  rule  in  Bailey,  2  Del.  Ch.  95. 

e  juity,  that  a  trust  shall  never  fail  "•  Att'y-Gen.  v.  GaiTison,  101  Mass. 

for  want  of  a  trustee:     Buchan  v.  223;    Ketchum    v.    R.    R.    Co.,    2 

Hart,  31  Tex.  647.  Woods,    532;    Scott  v.   Rand,   118 

■  Cui-tis  V.   Smith,   60    Barb.    9;  Mass.  215. 

Hunter  v.  Vaughan,  24  Gratt.  (Va).  *  Thatcher  v.    Candee,    4    Abb. 

400.  App.  Dec.  (N.  Y.)  387. 

2  Guion  V.   Pickett,  42  Miss.   77.  ^  Sargent  v.  Howe,   21   111.    148; 

As  a  general  ride,  a  court  of  chan-  Wilson  v.   Spring,   64  111.    14.     A 

eery  has  jurisdiction  to  control  the  successor  in  trust    is  usually  ap- 

exercise  of  the  power  of  appoint-  pointed  in  a  trust  deed  in  case  of 

ment  when  vested  in  an  individual  the  inability  or  refusal  of  the  tiais- 

so  far,  at  least,   as    to  prevent  an  tee  to  act. 


CHAPTER  XYII. 


OFFICL\X.  CONVEYANCES. 


§1. 
2. 
3. 
4. 
5, 
6. 


8. 

9. 
10. 
11. 

12. 
13. 


Defined  and  distinguished.  §  14. 

Official  deeds  generally. 

Recitals.  15. 

Covenants.  IG. 

Sheriff's  deed — On  execution,  17. 

Continued    —  Acknowledg- 
ment. 18. 

Continued — Operation,    ef-  19. 

feet.  20. 

Reformation. 

Statutory  sheriff's  deeds.  21. 

Sheriff's  deed — Under  decree.  22. 

^Mastere',  commissioners',  and 

referees'  deeds.  2U. 

Trustees. 

Tninsfei-s  of  the  legal  estate 
by  trustees. 


I'ower  of  sale  and  tiust  of 
sale  dLstinguished. 

Trustees'  tleeils. 

Mortgagees"  deeds. 

Executoi-s  and  administra- 
tors. 

Executoi-s'  deeds. 

Administrators'  (letnls. 

Administrator  with  will  an 
nexed. 

Guardian.s*  deeds. 

Trusters    can    not    become 
purchasers. 

Continued — Exceptions  and 
quulilications  to  the  rule. 


§  1.  DcfiiRMl  and  Distiiii^uished.  Onicial  deods  com- 
prise all  tliose  conveyances  wherein  tiie  maker  acts  hy  virtno 
of  an  office  and  not  in  his  indivichial  or  })ei-s<)nal  Ciii»acitv. 
They  cover  a  wide  j)ortion  of  the  licld  of  convcyaiu-ino-  aii<l 
assume  a  variety  of  shaj)e.s,  hut  may  h«^  rcthucd  to  two 
f,'enercd  classes,  viz.:  tho.sc  ma<le  in  a  li(hi(iary  cajtacitv,  as 
the  deeds  of  trustees,  executors,  admiiiisf rat(»i\s,  etc.;  and 
tho.se  matle  in  a  miiiistciial  chanicter,  as  tht.'  (hvds  of  .slu-r- 
ifTs,  commissioners,  masters,  etc'  The  ruh's  lor  const i-uiii;^ 
deeds  are  much  tlie  same,  whether  the  deed  Jh»  made  hv  u 
party  in  his  own  ri^dit,  or  hy  a  fiduciary  or  officer  of  tlio 
court.* 

'  For  a  further  diHnifwIon  of  the      cory    ProctM'dingH,"    "  .hi<l;:MifntM 
Bubj<H't*i  of  this  rliapt4T,  tlie  n-adi-r      und  Di-cni-i"  iukI  "  IVoliaU-  l*rt>- 
in  n'f<Trc<l  to  the  ( li.iptcrH,  "  Exf-      cccdinp*  ami  Ihwi-ntw." 
cutiun  uml  Judicial  Sali-a,"  "  Clian-  •  White*  v.  Luning,  y;j  L'.  .S.  515. 

(297) 


'208  ABSTRACTS    OF    TITLE. 

§  2.  Oiriclal  Deeds  Gonerally.  It  is  the  jx.lii-y  of  the 
law  to  invest  the  sheriff,  master  in  chancery,  administrator, 
etc.,  in  making  sales  of  real  estate,  with  only  a  mei-e  naked 
power  to  sell  such  title  as  the  debtor,  deceased  person,  etc., 
had,  without  warranty,  or  any  terms,  except  those  imposed 
by  law.  Hence  a  purchaser  at  such  sales  takes  the  risk  of 
the  title,  and  the  validity  of  the  proceedings  under  which 
the  sale  is  made.'  The  power  to  sell  lands,  however  con- 
ferred, must,  as  a  rule,  be  strictly  pursued,  otherwise  the 
sale  will  l)e  void  and  no  title  will  jiass,"  and  a  deed  which 
shows  on  its  face  an  excess  of  authority  in  the  oiticer  exe- 
cuting it,  will  not  be  suflicient  to  sustain  the  title  of  one 
claiming  under  it."  Greater  detail  is  recpiircd  in  the  abstract 
of  instruments  of  this  character,  which  should  show  sub- 
stantially all  the  material  parts  of  the  deed,  including  all 
the  recitals  necessary  to  a  full  compliance  with  the  law, 
even  though  the  instrument  seems  at  times  to  be  unreason- 
ably  long ;  though  a  judicious  condensation,  where  the  full 
si)irit  of  the  original  is  retained,  may  be  observed  to  good 
purpose,  and  the  labor  of  examiner  and  counsel  be  percepti- 
bly lightened. 

§  ?).  Kecitals.  It  is  customary,  and  in  many  cases 
necessary,  to  show  all  the  material  recitals  in  official  con- 
veyances, though,  unless  the  form  is  prescribed  by  statute, 
such  recitals  are  regarded  only  as  inducement;*  but  where 
])rescribed  by  statute  they  become  substance*  and  must 
always  be  shown  or  indicated  in  some  manner.     The  main 

'  Bishop  V.  O'Connor,  69  111.  431.  which  any  one  would  take   and 

'  King  V.  "Whiton,  15  Wis.   684;  pay  tlie  judgment  and  costs,  and 

White  V.  Moses,  21  Cal.  44.  w;i.s  held  void  on  its  face. 

3  G.  B.  &  M.  C.  Co.  V.  Groat,  24  "  Leland  v.  Wilson,  34  Tex.  79; 
Wis.  210;  French  v.  Edwards,  13  Foulk  v.  Coburn,  48.  Mo.  225;  War- 
Wall.  50G.  The  deed  in  this  case  ner  v.  Sharp,  53*  Mo.  598;  Jones  v. 
was  by  a  slieriff  under  a  judgment  Scott,  71  N.  C.  192.  A  clerical 
for  taxes.  Tlie  deed  recited  the  error  in  the  recitals  is  not  to  be  re- 
sale of  the  property  to  the  highest  garded  in  equity:  Stow  v.  Steele, 
bidder,  when  he  was  authorized  45  111.  328. 

by  the    statute    only  to  sell    the  '  Atkins  v.   Kinman,  20  Wend, 

smallest  quantity  of  the  property  249. 


OFFICIAL   CONVEYANCES.  200 

reason  why  such  recitals  shoiihl  be  sliown,  arises  from  the 
fact,  that  they  are  usually  regarded  as  evidence  against  the 
grantee  and  those  claiming  under  him,'  and  as  to  such 
parties  are  conclusive.'  The  recitals  are  further  regarded 
as  presumptive  evidence  of  the  facts  stated,'  and  will  prevail 
until  the  contrary  is  shown.  These  remarks,  however,  have 
reference  more  to  ministerial  ollicei-s  than  to  fiduciaries. 
The  recitals  in  the  deeds  of  the  latter  are  material  to  show 
a  due  execution  of  the  powers  given, 

§  4.  Coveuants.  There  are  no  implied  covenants  in 
official  deeds,*  and  where  the  deed  contains  ex])ix^ss  cove- 
nants they  have  been  held  to  bind  the  officer  ])ei'sonally.' 
Sometimes  the  deed  will  contain  what  is  known  as  tin? 
'*  trustee  covenant,"  which  is  to  the  elfect  that  the  venilor 
has  done  no  act  to  encumber  the  estate. 

§  5.  Sheriff's  Deed— On  Execution.  A  sheritrs  deed 
made  in  pursuance  of  a  sale  on  execution  must  l>e  to  the 
person  to  whom  the  certificate  of  purchase  was  issued  or  to 
his  assignee,  and  if  the  deed  is  made  to  anotlior,  though  it 
recites  that  he  is  the  assignee  of  the  certificate,  it  is  a  nullity 
if,  in  fact,  the  certificate  was  not  assigned.*  It  would  seem, 
therefore,  that  in  case  of  an  assignment  the  same  should 
aifirmatively  ap])ear  of  record  or  its  absence  be  noted  as  a 
substantial  defect.  To  establish  a  title  to  land  under  a 
sherilfs  sale  on  execution  all  that  is  necessary  to  be  shown 
as  a  general  rule,  is  a  valid  judgment,  or,  as  has  been  held, 
a  judgment  by  a  court  of  competent  jurisdicti<m,  no  mat- 
ter if   it  be  erroneous  on  its  face;'  execution  duly  issued;' 

'French  v.    Edwards,   13  Wall.  Avcn   v.  Bt>ckom,  11   Oa.  l;('rad- 

506;  Fiwk  v.    Frort*.   43  T<x.    340;  (l<K;k  r.  St-uart's  ailin'r,  «  Ala.  77; 

Lamar  v.  Turner,  48  (Ja.  329.  Ma^.v  v.  Mellon.  L*3  Miss.  :>xi\. 

*  Dun^tte  V.  HriKKH,  47  Mo.  :i'>0;  •  Carju  iiU-r  r.  Sli.rfy,  71  III.  121; 
I'rin^le  V.  Dunn,  37  WLs.  44J);  Itob-  coin|tar<'  Howuian  ik  liavis,  3U 
trtiMjn  V.  Gut-rin.  SO  Ti-x.  317.  Iowa.  3US. 

»Clia>je  V,  WhitinK,  30  Ww.  544.  ^  .Mayo  v.  Kol.y,  40  Cal.  SHI;  ,iii<l 

*  WcIwUt  y.  Conl.y.  49  III.  13.  wh^  D.n  v.  Taylor.  10  N.  .1.  I..  .'.;tj. 
»  I'roiity   V.    Matli.r.  49   Vt.  41.";  •  FiHlur  r.    KHlaman.   Cs   III.   7H; 

Sumnir  v.  Williaiiw,  H  Maw*.    HSi;       D.n  v.  Di'.^i.nau-x,  12  .N.J.L.  l^i. 
Mitchell   V.    Ilavin,   4    <  ..t,n     Is;,; 


300  ABSTRACTS    OF   TITLE, 

aiul  a  sheriff's  deed.'  But  in  all  cases  the  judgment  is  the 
foundation  of  the  title,"  and  proof  of  same  is  indispensable 
to  its  validity.'  As  the  sheriff  is  onl}^  the  executor  of  a 
naked  power  it  is  necessary  that  the  deed  sliow  substantial 
coin})liance  "with  the  terms  creating  the  power  as  well  as 
its  proper  execution,  yet  the  recitals  of  a  sheriff's  deed  are 
to  be  regarded  oidy  as  inducement,*  and  where  the  same 
substantially  complies  with  the  statutory  requirements,  it 
is  not  invalidated  by  ambiguous  recitals  or  omissions  Avhich 
do  not  mislead,"  It  is  said  that  the  statute  requiring  re- 
citals in  a  sheriff's  deed  was  not  intended  to  make  deeds 
void  which  do  not  contain  them,  but  was  only  intended  to 
make  the  recitals  evidence  of  the  facts  recited ;  and  when 
such  recitals  are  full,  they  dispense  with  the  necessity  of 
introducing  the  judgment  and  execution  in  evidence.  So 
far  as  such  a  statute  requires  recitals  beyond  what  are 
necessary  to  show  the  authority  of  the  officer  to  sell,  it  is 
jnerely  directory,"  and  where  the  deed  discloses  sufficient  to 
show  the  authority  to  sell,  even  though  the  particular  judg- 
ment and  execution  be  not  recited,  so  long  as  it  appears  to 
be  by  virtue  of  a  judgment  and  execution,  the  sale  and  con- 
ve^'ance  will  be  valid,  if,  at  the  time  of  such  sale,  the  sheriff 
had  in  his  hands  a  valid  execution.'  Defects  of  form  are 
leniently  regarded,  and  the  instances  are  ver}^  rare,  observes 
Mr,  Freeman,  "  in  which  a  deed,  issued  in  pursuance  of  an 
execution  or  chancery  sale,  is  void  for  errors,  defects,  or 
mistakes  in  form."  * 

•  Riddle  v.   Bush,    27  Tex.  G75;  v.  Scott,  TIN.   C.    192;  Looinis  v. 

Huslit-s    V.    Watt,    26    Ai-k.    228;  Riley,  24  111.  307;  Keith  v.   Keith, 

Splalin  V.  Gillespie,  48  Ind.   397;  104  111.  397. 
Lenox  v.  Clark,  52  Mo.  115.  « Clark  v.  Sawyer,    48    Cal.  133; 

'  Atkins    V.    Hinman,    2    Gilra.  Jordan  v.  Bradshaw,  17  Ark,    106; 

(lU.)  437;    Leland    v.   Wilson,    34  Holman  v.  Gill,  107  111.  467. 
Tex.  79;  Todd  v.  PhiUiour,  24  N.  '  Jones  u.  Scott,    71    N.    C,  192; 

J.  L,  796.  Clark  v.  Sawyer,  48  Cal.  133. 

'  Carbine  v.  Morris,  92  111.  555.  *  Freeman,  Void  Jud.  Sales,  ij  45. 

■•Leland  v.  Wilson,  34  Tex.  79.  Tlie  deed  however,  must  be  what 

'Allen  V.  Sales,  56  Mo.  28;  Jones  it  purports  to  be,  hence    a    deed 


OFFICIAL    CONVEYANCES.  St'l 

§  6.  Continued — Acknowledgnieiit.  Unlike  voluntary 
convevances  between  individuals,  it  is  essential  to  the  valid- 
ity of  a  sheriff's  deed,  for  land  sold  by  him  under  an  execu- 
tion, that  it  should  have  been  legally  acknowledged.  It  is 
true  that  a  sheriff's  deed  gives  the  vendor  an  inceptive  in- 
terest in  the  land,  but  he  has  no  right  to  enter,  and  no  claim 
upon  the  property,  as  against  the  former  owner,  until  after 
the  deed  is  acknowledged.  The  property  is  conveyed  against 
the  will  of  the  judgment  debtor;  the  conveyance  is  not  his 
act,  but  the  act  of  the  law;  and  the  law,  when  acknowledg- 
ment is  requisite,  must  be  strictly  complied  with.'  "Where 
the  acknowledgment  is  defective  the  deed  is  not  aided  by 
record.*  Proof  of  official  character  is  rarely  necessary,  how- 
ever, for  the  law  recognizes  such  officers  as  sheriff's  ami 
deputy  sheriffs;  and  instruments  executed  by  them  in  tlie 
course  of  their  official  duties  are  usually  sufficient  in  them- 
selves to  prove  that  they  were  the  officers,  in  fact  and  in 
law,  which  by  their  acts  they  profess  to  be.' 

§  7.  C'oiitiuued — Operation  and  Effect.  A  sheriff's  deed 
is  prima  facie  evidence  that  the  grantee  holds  all  the  title 
and  interest  in  the  land  that  was  held  by  the  judgment 
debtor  at  the  time  of  the  rendition  of  the  judgnu-nt,  and 
operates  back,  by  relation,  to  the  date  of  such  rendition  so 
as  to  extinguish  all  rights  and  equities  in  and  to  the  jnvm- 
ises  derived  from  the  judgment  debtor  in  the  meantime.' 
And  not  only  the  entire  interest  of  the  judgment  debtor 
passes  by  the  deed,  but  also  such  covenants  of  title  as  run 
with  the  land.'  If  made  to  a  hona  jide  purchaser,  and  reg- 
ular in  itself,  it  is  elfcctual  as  a  conveyancL',  and  can  not  bj 

lacking  a^  8o.il    conveyB    no  titlo:  ' Saimu'Ls  r.  Sliclton.  4S  Mo.  Ml. 

Hinsdalo  r.  Tliornton.   74    N.   C.  »0-h  .a   v.  Miller,    5U    Tex.  4«0. 

167;  Krus'j  t'.  Wilson,  79  III.  233.  ••  Sliiel.lH  v.  Miller,   9-  Kan.  890; 

'Ryan    v.     ("arr,    49     Mo.     4H3;  White  i-.  Daviw,  50  Mo.'3;W;  l-VrKU- 

Adains   r.    liiK  lianan.   49   Mo.  04.  Bon  r.  Mil«>s.  IJ  Cilin.  (III.)  ".'.S;  Mil- 

iJut    M«o    contra,    Steplunnon    r.  ler  f.  Wil.son.  !12   Md.  297;  Kirii  v. 

ThoiMi-.i.  1:5  III.  ISO,    where  it  in  VaiiI.erK.  34  111.  440. 

h<!l  th.ii  thr.  <|i'<'r|  may    he  provi-*!  »  Wjiitin;,' v.  lliitl<r,  29  Mi<h.  12'; 

hy  other  eviileruT',  an«l  (h<>ii(.';h   iiii-  White  r.  Whitiii-y.  3  ,Mrt.  M  ;  l^juiM 

a/krjoul.-.l;,'.-*]  itia  Hlill  vali.l.  v.  Todd,  32  -N.  J.  L.  121. 


302  ABSTRACTS    OF   TITLE. 

impeached  in  any  collateral  proceeding  for  mere  irreo-ulai^ 
it}^  in  any  of  the  proceedings,  judgment,  execution  or  return.' 

It  M'ill  operate  ao:ainst  the  judgment  debtor  by  estoppel, 
and  he  ^vill  be  precluded  from  setting  up  an  outstanding- 
title  to  avoid  the  sale  by  the  sheriff,  or  to  deny  the  title 
thereby  acquired  by  the  purchaser.' 

As  an  exception  to  this  rule,  it  has  been  held,  that  if,  after 
the  sale,  the  judgment  debtor  abandons  the  land,  and  after- 
ward returns  to  it,  and  is  sued  in  ejectment,  he  nuiy  show 
an  outstanding  title,  provided  he  shows  that  he  has  taken 
possession  and  holds  under  it,  and  the  same  rule  applies  to  a 
purchaser  holding  under  the  judgment  debtor  or  defendant 
in  execution.'  The  recording  of  a  sherilf 's  deed  operates  as 
constructive  notice  only  to  those  who  hold  or  claim  under 
the  judgment  defendant ;  strangers,  and  those  claiming 
under  an  independent  or  hostile  title,  are  not  alfected 
thereby.* 

§8.  Reformation.  The  only  remedy  for  a  false  descrip- 
tion in  a  sheriff's  deed  is  to  obtain  a  new  deed  in  the  court 
whence  the  process  issued.  Equity  will  not  aid  the  imper- 
fect execution  of  a  statutory  power."  Where  the  deed  has 
been  lost  before  registration,  the  otRcer  may,  it  seems,  exe- 
cute a  substitute.^ 

§9.  Statutory  Sheriff's  Deeds.  To  overcome  the  effect 
of  mis-recitals,  prevent  collateral  impeachment,  and  give  the 

'  Landetsu.  Brant,  10  How.  371;  'Gould  v.   Hendrickson,   96  111. 

Draper  v.  Bryson,  17  Mo.  71;  Mau-  599. 

rior  V.  Coon,  16  Wis.  465.  ''Gardner  v.  Jaques,  42  Iowa,  577. 

■^  Matney  v.  Graham,  59  ]\Io.  190;  *  Ware  v.    Johnson,  55  Mo.  500. 

Reid  V.  Heasley,  2  B.  Mon.  (Ky.)  But  where  a  sheriff  executed  a  deed 

25i;    Jackson  v.  Bush,  10  Johns.  at  the  proper  time,  but  omitted  to 

223;  Jackson  v.  Hagaman,  1  Wend.  affix  a    seal  or    scrawl  thereto,  the 

502;Gouldr.Hendrickson,6Ill.  599.  successor  of   the  sheriff  executed 

But  see  Kenyon  v.  Quinn,  41  Cal.  another  deed  in  proper  form,  and  it 

325,  where  it  is  held,  that  a  statu-  was  held  that  this  su1:>sequent  deed 

tory  provision  to  the  effect  that  a  would  relate  back  to  the  date  of  the 

conveyance  of  land  in  fee  simple  first  one:    Kruse  v.  Wilson,    79  111. 

shall  convej'  the  legal  estate  after-  233. 

ward  acquired  by  the  grantee,  has  ^  McMillan  v.  Edwards,  75   N.  C. 

no  application   to  a  sheriff's  deed  81. 
made  under  execution  sale. 


OFFICIAL   CONVEYANCES.  3U3 

full  desired  etTect  of  conveyances  by  the  sheriff,  the  legisla- 
tures of  a  majority  of  the  States  have  prescribed  certain 
forms  of  official  deeds  and  declared  their  legal  etFect.  As 
in  case  of  statutory  forms  of  deeds  between  individuals,  these 
conveyances  contemplate  but  little  verbiage,  while  the  stat- 
ute supplies  Avhat  was  formerly  obtained  by  long  and  tedious 
recitals.  Sufficient  description  is  given  to  fully  iilentify  the 
judgment,  execution  and  sale  and  to  show  the  authority  of 
the  officer,  while  the  granting  portion  is  confined  to  the 
fewest  legal  essentials.  The  deed  is  in  itself  little  else  than 
an  abstract,  and  contains  very  little  that  must  not  also  bo 
shown  in  })resenting  a  synopsis  of  it.  The  example  which 
follows  is  an  abstract  of  the  form  now  in  use  in  Illint)is,  but 
which,  so  far  as  the  observation  of  the  writer  has  gone, 
differs  but  little  from  those  now  employed  in  other  States. 

Seth  Hanchett,  Sheriff  of  ^      Sheriff's  Deed. 
Cook  County,  III.,  [      Dated,  etc. 

to  ^  *  ^,  *  At  ,, 

William  B.  Denton.     J  *         *         *         ^-        * 

Recites  that  whereas,  A.  B.  did,  at  the  May  term  of  the 
Circuit  Court  of  Cook  County,  ISSO,  recover  a  judyment 
ayainst  C.  D.for  the  sum  of  $100.00.*  and  costs  of  a  a  it,  ujxm 
which  an  execution  was  issued  dated  June  3,  JSSO,  directed  to 
said  sheriff  to  execute,  by  virtue  ofv)hich  the  said  sheriff'  levied 
upon  the  premises  hereinafter  described;  and  the  time  and 
vlace  of  the  sale  thereof  having  been  duly  adi'ertis>d  accord- 
i?iy  to  Imo,  the  same  ivere  struck  off'  and  sold  t<>  II  illiam  B. 
Denton,  he  beinythe  highest  and  best  biddir  th( nfto'. 

Therefore,  said  sheriff,  in  conmtleration  tf  the  j>^''"ii^i^<^-^y 
conveys  to  said  second  party  the  fullowiny  described  parcel  of 
layid  [descrihiny  the  same]. 

Acknowledgment. 

'  A     Htiitutoni'    pnjvision    wliiih  tlif  ofTiccr  in  liiw   ofl'uial   rnimrity, 

pritM-rilx-H   t)i(.-    fortii  of  :i  Hhcritr'rt  and  in  coiisiiiiiinatioii  nf  tlio  li-^-al 

dec-fl,    w*    far    iw    it  n-iininn    tliu  priHccdinps      u|miii     wiiii  I>     it     »« 

amount  of  tli<' judxnicrit  to  !»<'    in-  foiimiid,  \vitliKU<lirrf<Tt'n«-cHlotlu' 

wrt^-*!  in  tlic  d*'*-*!,  iH  int-n-ly  ilin«t-  Ilr^>(•^•^•din^cH  tlirniwIvi-H  that    tln-y 

orj'.     It  iH    Ku(n<i<'nt    if   it   rli  nrly  may  Im-  readily  found   and    idi-nti- 

aplHjars,  that  tlie  dftnl  i«   niado   by  flid:     llulnian  r.  tJill,  107    111.  IdT. 


30-1  ABSTRACTS    OF    TITLE. 

Tlie  legal  c(Toct  of  this  brief  deed,  as  declared  by  statute, 
is  to  convey  to  the  grantee  therein  named,  all  the  title, 
estate,  and  interest  of  the  person  against  Avhom  the  execution 
Avas  issued,  of  every  nature  and  kind,  in  and  to  the  premises 
thereby  conveyed,  but  implies  no  covenants  on  the  part  of 
the  officer  executing  same.  It  is  further  jyriraa  facie  evi- 
dence that  the  provisions  of  law  in  relation  to  the  sale  of  the 
property  for  which  it  is  given  were  complied  with;  and  in 
case  of  the  loss  or  destruction  of  the  record  of  the  judg- 
ment, or  of  the  execution  or  levy  thereon,  is ^^v'wrt^/rta'c^  evi- 
dence of  the  recovery  and  existence  of  the  judgment,  and 
issuing  and  levy  of  the  execution  as  therein  recited.' 

§  10.  Slieriff' s  Deed — Under  Decree.  Though  a  mas- 
ter, commissioner  or  referee  is  the  medium  through  which  a 
court  of  chancery  ordinarily  executes  its  decrees,  the  duty 
not  infrequentl}'  devolves  upon  the  sheriff  either  b}''  virtue 
of  his  ortice  or  through  special  appointment.  While  acting 
under  a  decree  he  occupies  the  same  position  as  a  commis- 
sioner, and  is  but  a  ministerial  officer  of  the  court,  to  whom 
he  must  malce  reports  of  his  acts  and  by  whom  they  must 
be  confirmed  before  conveyances  can  be  lawfully  made." 
His  deed,  like  a  master's,  recites  his  authority,  and  takes 
effect  as  a  conveyance  in  the  same  manner.' 

§  11.  Masters',  Commissioners'  and  Referees'  Deeds. 
The  conveyances  of  a  master  of  chancer}'-,  commissioner  or 
referee  differ  in  no  material  respect  from  those  of  a  sheriff 
actino-  under  a  decree,  the  power  exercised  being  the  same  in 
all,  and  the  principles  which  govern  any  one  operating  with 
equal  force  upon  the  rest.  Like  the  sheriff,  their  deeds  are 
without  warranty,  or  any  terms  except  those  imposed  by 
law,  and  they  convey  only  such  titles  as  the  defendant  pos- 
sessed. The  recitals  of  this  class  of  conveyances  are  usually 
very  long  and  verbose  and  should  be  judiciously  condensed 
by  the  examiner  to  shoAv  all   that   is  material   in  as  few 

'  R.  S.  III.  1874,  Cli.  77.  'See    the    remarks    relative    to 

'Taylor  v.  Gilpin,   3  Met.  (Ky.)  deeds  of  other  ministerial  officere, 

544 ;  Hunting  v.   Walker,   33  Md.  and    the    chapter    on  "  Execution 

(50.  and  Judicial  Sales." 


OFFICIAL   CONVEYANCES. 


305 


■words  as  possil>le.  The  special  formal  parts  relate  to  the 
title  ami  authoiitv  of  the  officer,  and  the  recitals  sho\vin<r 
a  due  com})liaiice  with  the  decree.  In  the  abstract  the 
deed  follows  the  court  proceedings  and  certificate  of  sale, 
and  mav  be  shown  brietlv,  as  follows : 


Henry  W.  BisJwp,  as  Master 
in  Chancery  of  the  Circuit 
Court  of  the  Vnited  States 
for  the  Xortheni  Diatrict 
of  Illinois, 
to 
Silas  lI'tY/y,  Jr. 
Doc.  12\,SG5. 


Master'' s  Deed. 

Dated  June  10,  ISSl. 

Jiecorded,  July  12,  ISSL 

Boitk  J^l(\  puije  Go. 

Sets  forth  that  in  pursuance 
of  a  decree  entered  March  13 , 
ISSl,  by  said  Court  in  a  cer- 
tain case  then  pending  there- 
in wherein  John  Doc  was 
Complainant,  and  Richard  Roe,  Defendant,  the  said  Master 
duly  advertised,  accord  in  fj  to  law,  the  j/rejnises  hereinafter 
described,  for  sale  at  public  auction  to  the  highest  and  be.'-t 
bidder,  for  cash,  at  two  o'clock  P.  M.,  on  Monday,  June  1, 
18S1,  at  the  north  door  of  the  U.  S.  Custom  House  and  Post 
Office,  in  the  City  of  Chicago,  Cook  County,  Illinois.  That 
at  the  time  and  place  so  as  aforesaid  appointed  for  said  sain.-, 
the  said  Master  attended  to  make  the  sam£,  and  offered  said 
premises  for  sale  at  public  avction,  to  the  highest  and  best  bid- 
der, for  cash,  ajid  thereupon  Silas  Wegg,  Jr.,  offered  and  bid 
therefor  $125.00,  and  that  being  the  highest  and  best  bid 
offered,  said  Master  accordingly  struck  off  and  sold  to  said 
Silus  yS'egg,  Jr.,  for  said  sum  <f  money,  the  said prcmisrs,  and 
did  thereupon  sign,  seal  and  deliver  to  said  Silas  Wegg,  Jr., 
the  vsual  Master  s  Certifcat'^  therefor,  and  that  said pretnises 
have  not  been  redeemed  from  said  sale.  Now,  therefore,  in 
consideration  of  the  premises  cnnvys  said  premises  described 
as  folUjtos,  to  roit :  [^Here  follows  the  description  of  the  pnp- 
erty.] 

Certificate  of  ackmnnledginent  dated  June  10,  ISSl. 


§  12.     Trustees.     A  trustee   is   di-finod    as   a  person  in 
whom  some  estate,  interest,  or  power  in  or  uirccliii;;  prop- 


ao 


306  ABSTRACTS    OF   TITLE. 

erty  of  any  description  is  vested  for  the  benefit  of  another,' 
and  thoiiuli  the  name  is  technically  applied  to  a  particular 
class,  it  also  to  a  certain  extent,  coni})rises  executors,  admin- 
istrators, guardians,  assignees,  etc.  AVhere  the  legal  title  of 
a  trustee  is  created  by  the  owner  of  the  projierty,  the  riglit 
of  the  trustee  to  enforce  it  will  be  recognized  everywhere; 
but  where  such  title  is  derived  solely  from  some  act  of  the 
law,  the  elfect  of  that  act  is  confined  to  the  territorial  juris- 
diction over  which  the  law  extends.^  Upon  the  death  of  a 
trustee,  the  legal  estate  devolves  upon  his  heir  at  law;  and 
the  heir  takes  the  same  estate,  and  is  subject  to  exactly  the 
same  duties  and  res})ousil>ilities  as  his  ancestor.' 

But  in  case  of  more  than  one  trustee,  tlie  rule  would  l)e 
ditferent,  for  by  the  common  law,  and  usually  by  the  statute 
as  well,  the  estate  of  trustees  is  held  in  joint  tenancy,  and 
hence,  upon  the  death  of  one  of  several  trustees  nothing 
passes  to  the  heir  or  personal  representatives,  but  the  whole 
estate  devolves  upon  the  survivors.* 

Being  founded  on  personal  confidence,  it  necessarily 
results  that  a  trustee  can  not  delegate  his  trust  to  others," 
and  is  himself  responsible  for  the  acts  of  all  his  subordinates 
in  whatever  character  they  may  act.*  A  trustee  can  not 
profit  by  his  trust  estate,'  nor  become  a  purchaser  at  any 

•  2  Bon.  Law  Diet.  610.  >  Graver  v.   Hale,    107  111.    638. 
'  Curtis  V.  Smith,  6  Blackf.  (Intl.)      But  where  the  ti-ustee  conveys  the 

537.  legal  title  to  one  having  knowl- 

3  Watkins  v.    Specht,  7  Coldw.  edge  of  the  trust,  or  wliere  such 

(Tenn.)  585;  McMullcn  r.    Lank,  4  other  person   in  any  manner   ac- 

Houst.  (Del.)  648.     By  force  of  the  quires  the  legal  estate  with  such 

statute  the  trust  sometimes  vests  in  knowledge,  he  holds  the  property 

some    tribunal    in  the  county  in  subject  to  the  ti-ust  and  may  be 

which  the  real  estate  is  situated,  compelled  in  equity  to  execute  it: 

which,   upon    the    application    of  Ryan  v.  Doyle,  31  Iowa,  53;  Smith 

some  person  interested  in  the  trust,  v.  Walser,  49  Mo.  250. 

forthwith  appoints  a  succe.ssor  to  *  Moorecroft   v.   Dowding,    2  P. 

the  deceased  trustee,   whereupon  Wms.  (Eng.  Ch.)  314. 

the  trust  vests  in  the  newly  ap-  Taucettz;.  Faucett,  lBush(Ky.), 

pointed  trustee:  Collier  v.  Blake,  14  511. 
Kan.  250. 

*  Gulder  v.  Brewster,  105  Ills.  419. 


OFFICIAL    COXVEYA^'CES.  307 

t 

sale  thereof  b}"  him,'  while  the  power  under  which  he  acts 
must  in  all  cases  be  strictly  pursued  to  render  his  acts  valid.^ 
A  joint  power  of  sale  must  be  executed  by  all,  provided  all 
are  living  and  in  condition  to  act,'  unless  the  instrument 
creating  the  trust  pro\'ides  otherwise,*  for  the  interest  held 
by  several  trustees  is  an  entirety,  and  can  only  pass  as  a 
whole ;  hence  all  the  trustees  living,  having  an  interest  in 
the  property,  must  join  in  the  conveyance,  otherwise  it  will 
be  wholly  inoperative.'  But  in  case  of  the  death  of  one 
or  more  of  the  trustees,  the  survivor  or  survivors  will  hold 
the  trusts  and  may  execute  the  powers.'  A  deed  by  the 
survivors,  representing  the  entire  title,  will  be  good,  even 
though  they  are  authorized  to  fill  the  vacancy,  as  it  is  only 
where  the  terms  of  the  power  creating  the  trust  impera- 
tively require  the  vacancy  to  be  filled,  that  the  acts  of  the 
survivors  will  be  invalid.^ 

The  questions  suggested  by  the  foregoing  statements  are 
many,  and  will  readily  present  themselves  to  counsel  upon 
the  examination  of  an  abstract.  To  satisfactorily  solve 
them,  the  grant  of  power  must  be  exhibited  in  the  chain,  or, 
if  made  prior  to  the  commencement  of  the  search,  a  requi- 
sition for  its  production  must  be  made,  that  it  may  satisfac- 
torily appear,  from  actual  inspection,  that  the  proceedings 
of  the  trustees  have  been  regular  and  in  conformity  to  the 
terms  of  the  instrument  creating  the  trust. 

§  13.  Transfers  of  the  Lciral  Estate  by  Trustees.  The 
doctrine  of  the  obligation  of  ])urcliasers  to  observe  the 
proper  application  of  the  purchase  money  in  cases  of  sales 
by  heirs,  devisees,  trustees  and  other  fiduciaries  was  foruicrly 

'  Tenvcllipcr  v.  Brovm,  4-1  N.  Y.  '  Loarnod  r.  "Wilton,  40  Cal.  349. 

237.    This  is  tlieuniversjiUy  accept-  *  CJould  v.  Matlu-r,  104  Mass.  2S3. 

ed  doctrine,  but  is  subject  to  some  "  *  Colder    v.  Brewster,     lOH    111. 

qualifications,  the  law  not  exacting  419;  Dnnnan  i'.  Willson,  71  N.  Y. 

the  sfune  ri>;id  degree  of  Htrictn«'88  .OO'J. 

in  all   the  SUites.    Clark  t\  Clark,  *  Lane   v.    Debeiiliam,   11    ll;iic, 

6.'>  N,  C.  (',r,r,.  an<l  hch  "  Tnistei-s  and  IHM. 

AgentH  as  runhasers,"  iiifnt.  '  (iulder  t'.  Brt-Wbtcr,  lOo  ill.  419. 

■'  Huntt  V.  Towubhend,   31    Md. 


308  ABSTRACTS    OF   TITLE. 

very  intricate  and  pi-ofound,  abounding  in  nice  distinctions 
and  subtle  gradations;  but  these,  in  a  large  measure,  have 
been  swept  away  by  sjiecial  statutes  in  England,  while  in 
the  United  States  the  old  English  doctrine  has  rarely  been 
administered  excei)t  in  cases  of  fraud  in  which  the  pur- 
chaser was  a  participant.  The  genei-al  rule  now  is,  and  for 
years  past  has  been,  that  a  purchaser  who  in  good  faith  pays 
the  purchase  money  to  a  person  authorized  to  sell,  is  not 
bound  to  look  to  its  application ;  and  there  is  no  dilference 
in  this  respect  between  lands  charged  in  the  hands  of  an 
heir  or  devisee  Avith  the  payment  of  debts,  and  lands  devised 
to  a  trustee  to  be  sold  for  that  purpose.' 

"The  present  well-established  rule  of  law  in  regard  to 
trust  estates  is,"  says  ]\Ir.  Ivedilcld,'  "  that  when  the  trustee 
holds  the  trust  estate  for  the  purpose  of  sale  and  conversion 
into  money,  or  with  a  power  of  sale  and  conversion,  any  one 
who  in  good  faith  accepts  such  transfer  upon  adequate  com- 
pensation, will  acquire  a  valid  title.  But  if  the  trustee  has 
no  power  of  sale  the  purchaser  will  acquire  no  title  unless 
he  show  that  the  purchase  money  has  been  applied  to  the 
purposes  of  the  trust.  It  is  this  ^vliich  marks  the  true  dis- 
tinction between  the  cases,  where  the  purchaser  is  bound  to 
see  to  the  ap])lication  of  the  purchase  money  and  where  he 
is  not.  For  if  the  trustee  has  no  power  of  sale,  any  transfer 
b}^  him  will  be  wholly  inoperative  and  the  trust  will  attach 
to  the  trust  property  in  the  hands  of  the  vendee  the  same 
as  in  the  hands  of  the  trustee,  until  it  appears  that  the 
money  paid  by  the  vendee,  to  the  full  value  of  the  trust 
property,  has  been  applied  to  the  purj^oses  of  the  trust." 

§  14.  Power  of  Sale  and  Trust  of  Sale  Distinguished. 
Under  testamentary  trusts  questions  of  title  are  frequently 
raised  on  the  construction  of  the  authorit}^  under  which  the 
trustee  effected  the  sale,  but  the  same  questions  may  some- 
times arise  under  deeds  of  trust.     "  The  more  common  case 

'  Cryder's    Appeal,     11    Pa.  St.  Gardner,  3  ]Mason  (C.  Ct.),  178,  and 

72;  Champlin  v.  Haight,  10  Paige  see  Warvelle  on  Vendors,  577. 

(N.  Y.),  275;  White  v.   Carpenter,  ^  3  Eedf.  on  Wills  (3d  Ed.),  620. 
2  Paige  (N.  Y.),  217;   Gardner  v. 


OFFICIAL   CONVEYANCES.  3(>0 

of  trusts  with  power  of  sale/'  observes  Mr.  Eedfield,'  "  is 
where  the  testator  devises  his  estates,  together  with  all  his 
personalty,  directing  that  the  latter  be  lirst  applied  in  the 
payment  of  del)ts  and  legacies;  and  in  default  of  it  proving 
sufficient,  that  the  real  estates  be  sold  by  the  trustees, 
either  generaUy,  in  tlieir  discretion,  or  in  some  order  named 
in  the  will."  In  such  case,  the  learned  author  contends  that 
it  would  be  the  duty  of  the  trustees  to  assure  themselves 
that  a  deficiency  in  the  personalty  has  really  occurred  before 
tliey  can  properly  proceed  to  sell  real  estate,  and  distinguishes 
between  a  trust  and  power  of  sale  in  this  manner:  "A 
power  of  sale,  in  the  event  of  the  personal  estate  proving 
insufficient  to  pay  debts  or  legacies,  or  both,  is  a  power 
depending  upon  a  condition  precedent,  and  will  not  attach 
unless  the  condition  occur ;  and  a  sale  under  such  a  power, 
when  the  condition  had  not  in  fact  occurred,  will,  of  course, 
convey  no  title.  It  is,  therefore,  in  a  case  of  this  kind 
essential,  that  all  persons  interested  in  the  purchase  antl  in 
acquiring  a  good  title,  should  assure  themselves  that  the 
power  has  really  attached.  In  such  a  case  the  receii)t  of 
the  money  by  the  appointee  will  have  no  effect  upon  tlie 
]iassing  of  tlie  title,  and  will  commit  no  one  to  its  ai)plica- 
tion  or  repayment  except  the  person  receiving  it.  I3ut  in 
the  case  of  a  trust  for  sale  under  a  will,  the  title  having 
passed  to  tlie  trustee,  the  title  will  pass  u])()n  any  such  sale 
as  rests  upon  an  apparent  occurrence  of  the  emergencies  justi- 
fying a  sale;  and  the  payment  of  the  money  by  the  purchaser 
to  the  trustee,  and  his  receipt  for  same,  will  exonerate 
the  purchaser  from  all  responsibility,"''  The  exercise  of 
trusts  and  powers  is  now  very  generally  controlled  by  stat- 
ute, and  a  trust  not  all<»wed  by  the  statute  is  wholly  invalid 
and  no  estate  vests  in  the  trustees;  but  a  trust  directing  or 
authorizing  the  ])erformance  of  ;my  :ict  which  may  be  law- 
fuUv  perfoi-med  under  a  power,  will  still  be  valid  as  a  power 

'  3  Rt'df.  on  WillH  (:J<I  E«l.).  Wl.        oitiuK  WalUt-r  r.  Sniallwood,  Ami., 
»3U«-<lf.on  Wilts  (3dE«l.),   STJ,      (Eng.  Cli.  >,  CTf., 


310  ABSTEACTS    OF   TITLE. 

ill  trust,'  subject  to  the  provisions  of  the  statute  in  relation 
to  powers.  AVhere  the  trust  given  does  not  pur[)ort  to  l)e  a 
trust  of  sale,  but  simply  a  power  in  trust,  a  deed  made  l)y 
the  executor  under  it,  will  convey  a  good  title  to  the  i)ur- 
chaser,  and  this,  notwithstanding  the  fact  that  the  real 
estate  is  devised  absolutely  by  the  will.' 

§  15.  Trustees'  Deeds.  Titles  derived  under  trustees' 
deeds  require  close  scrutiny,  for  where  a  deed  of  trust 
minutely  and  particularly  prescribes  the  circumstances  un- 
der Avhich,  anil  the  nuinner  in  Avhich,  the  trustees  shall  have 
authority  to  sell  the  trust  property,  the}?"  have  no  power  or 
authority  to  dispose  of  such  property  under  any  other  cir- 
cumstances or  in  any  other  manner.^  Fiduciariss  and  trus- 
tees, if  they  exceed  and  violate  their  authority,  are  respon- 
sible, though  no  bad  faith  prompted  their  acts;  and  those 
who  deal  with  them  on  the  faith  of  the  trust  estate,  must 
be  aware  that  they  exercise  only  limited  and  delegated 
powers,  and  are  bound,  at  their  peril,  to  take  notice  of  such 
powers  and  see  to  it  that  they  confine  themselves  Avithin 
their  scope.* 

A  trustee  having  once  accepted  the  trust  in  any  manner, 
a  purchaser  can  not  safely  dispense  with  his  concurrence 
in  a  sale  of  the  trust  estate,  notwithstanding  he  may  have 
attempted  to  disclaim,  and  although  he  may  have  released 
his  estate  to  his  co-trustees.  All  the  trustees,  in  case  of 
several,  must  unite  in  a  disposal  of  the  trust  pro])crty,  and 
a  deed  by  two,  while  a  third  is  living,  is  not  valid.  The 
trustees  take  as  joint  tenants,  and  must  all  unite  in  the 
execution  of  the  trust,  and  especially  in  a  deed  of  lands. 

A  trustee  can  not  delegate  any  duty,  unless  the  power  to 
delegate  is  expressly  given,  which  involves  the  exercise  of 
any  discretion  or  judgment.     Mere   mechanical   or  minis- 

'  Downing  r.  Marshall,  23  N.  Y.  vested  in  the  devisees,  subject  to 

366.                                              •  the  execution  of  the  power. 

5  Crittenden  v.  Faii-child,  41  N.  Y.  ^  Huntt  v.  Townsliend,  31  Md.  336. 

289.     In  this  case  it  was  held  that  *Owen  v.    Reed,    27    Ark.    122; 

such  power  was  not  inconsistent  Vernon  v.  Board  of  Police,  47  Miss, 

with    the    devise,   but    the    estate  181 ;  Ventres  v.  Cobb,  105  111.  33. 


OFFICIAL    COXTEYAXCES.  311 

teriiil  duties  may  be  done  bv  others.  The  pavticulnr  mo- 
diiim  of  advertisement,  the  manner  of  conductino-  the  sah' 
the  best  method  of  offering  the  property,  and  the  question  of 
postponement  of  the  sale,  and  the  sale  itself,  are  matters 
regarding  which,  when  they  are  not  prescril^ed  b}^  the  in- 
strument under  which  he  acts,  special  trust  and  confidence 
are  reposed  in  the  trustee ;  and  they  can  not  be  delegated 
to  an  agent.'  All  these  duties  are  usuall}"  matters  of  re- 
cital in  the  trustee's  deed,  and  it  is  advisable  that  they  be 
shown  in  the  abstract  substantially  as  there  stated, 

AVhere  the  trust  deed  forms  a  portion  of  the  examination, 
the  trusts  and  conditions  should  fully  appear  in  the  abstract 
of  that  document,  and  reference  to  them  will  be  sufficient  in 
preparing  the  synopsis  of  the  trustee's  deed.  Should  the  trust 
deed  not  be  included  in  the  examination  the  conditions  as 
reciteil  in  the  deed  may  be  given,  or  a  note  substantially 
embodying  them  may  be  appended,  as  per  the  example 
shown.  Here  is  an  example  of  a  trustee's  deed  made  on 
foreclosure  of  a  power  of  sale : 

Pliny  B.  Smith,  "1       TmMee's  Deed. 

Trustee,  I      Dated  Jan.  5,  1882. 

to  j-      Uerorded  Jan.  6,  1882. 

WiUiam  TJiompmn,  Dook  500,  iKUje  520. 

Document  1008.  j       Jlecites,    that    John    Peter- 

son and  Maria,  his  wife,  hy 
a  Trust  Deed,  dated  May  1,  1880,  and  recorded  May  S, 
1880,  in  hook  Ji-lO,  page  512,  conveyed  to  l^liny  B.  Smith, 
as  Trustee,  all  the  premises  hereinafter  described,  to  secuj'e 
the  j)ayment  of  SUOOO,  to  Hiram  Jones,  in  one  year  from 
May  1,  1880,  evidenced  hy  said  Peterson'' s  one  promissory 
note  of  even  date  with  said  Trust  Deed. 

Also  sets  forth  t/ic  j)()wer  (f  sale  in  sai/l  7^i-ust  Dt,d  con- 
taiyied.* 

And  default  having  heen  made  in  the  payimnt  (f  said 

'  Ralf-rt    r.     I'crry,    •'51    Mo.    441);  truHt  doiMl    has  nlrcjuly    I n   cx- 

CJroviT  V.  Hall-.  H»7  III.  0:W.  hiliiti-d,  tliJH,  of  cuiirse,  woui.i    \w 

'  Till;  iM.wcr  of  wile  may  l»<'  w-t  uimt'ce»Hury. 
out   lii;re   u«   din-(l<il,    Imt    if  llio 


312  ABSTRACTS   OF    TITLE. 

notCy  and  Jlirum  Jones,  the  legal  holder  thereof,  having  ap- 
plied to  first  party,  as  such  Trustee,  to  cause  the  premises 
herein  described  to  be  sold  for  the  j'arposes  mentioned  in, 
and  in  accordance  with  the  provisions  of  said  Trust  Deed^ 
first  party  on  Dec.  5,  1S81,  caused  a  due  notice  to  be  pub- 
lished in  the  Legal  Adviser,  a  newspaper  p)ublished  {jjrinted) 
in  the  City  of  Chicago,  CooJc  County,  Illinois,  that  said 
preinises  hereinafter  described  would,  on  Jan.  5,  18S2,  at  one 
o'clock  P.  M.,  be  sold  at  public  auction,  at  the  North  door 
of  the  Court  House, ^  in  the  City  of  Chicago,  Ills.,  to  the 
highest  bidder  for  cash,  by  virtue  of  the  power  and  authority 
in  him  vested  by  said  Trust  Deed  j  which  said  notice  was 
{printed)  p)^t^lished  for  thirty  days  in  said  paper,  commenc- 
ing on  Dec.  5,  1S81,  and  ending  on  Jan.  If,,  1882^  the  date 
of  the  first  paper  containing  the  same,  being  Dec.  5,  1881, 
and  of  the  last  of  Jan.  Jf,,  1882. 

And  said  premises  having  been,  by  said  first  party,  on 
Jan.  5,  1882,  at  one  d'cloch  P.  M.,  in  the  rnanner  prescribed 
in  and  by  said  Trust  Deed,  and  at  the  place  last  aforesaid, 
in  pursuance  of  said  iiotice,  offered  for  sale  at  2>uhlic  auc- 
tion, to  the  highest  bidder  for  cash,  and  second  party  hawing 
been  the  highest  bidder  therefor,  and  having  bid  for  the  tract 
hereinafter  named,  $1,050,  he  was  duly  declared  the  p>ur- 
chaser  thereof. 

Now,  therefore,  in  consideration  of  the  sum  so  bid,  grants, 
bargains,  sells,  aliens,  reraises,  releases  and  confirms  the  fol- 
lowing described  land  in  C/iicago,  Cook  County,  Illinois,  to 
wit:     \_IIere  set  out  the  description  of  the  2)rop>erty  conveyed.'\ 

'  Tliis  is  an  important  recital  and  in  violation  of  its  terms:    Equita- 

shoultl  always  be  set  out.     Where  ble  Trust  Co.  v.  Fisher,  lOG  111.  189. 

a  trust  deed  gives  the  trustee  the  ''A  power  to  sell  "  at  the  north 

power  to  advertise    and  sell    the  door  of  the  court  house,"  may  be 

mortgaged  premises  on  default  of  well  executed,  if  the  building  has 

payment,   when    so  requested  by  meantime  been  destroyed  by  fire, 

the  holder  of  the  indebtedness,  and  by  a  sale  at  the  niins  of  the  north 

the  trustee,   without  being  so  re-  door.     The  meaning  of  the  phrase 

quested,  advertises  the  property' for  consists  in  identifj'ing  a  place  of 

sale,  his  act  will  be  unauthorized  sale,  not  in  the  identity  of  tlic  door; 

under  the  power,  and  the  sale  may  Waller  v.  iVinold,  71  III.  35U. 
be  avoided  and  set  aside  as  made 


OFFICIAL   COXVEVAXCES.  313 

Together,  loiili  all  and  singular,  the  tenements,  heredita- 
ments, and  appurtenances  thereunto  belonging,  as  the  same 
are  described  and  conveyed  in  and  hy  the  said  Trust  Deed; 
and  also,  all  the  estate,  right,  title,  interest,  property,  claim., 
and  deniaml  whatsoever,  l>oth  in  law  and  equity,  of  the  said 
John  Peterson  and  wife,  as  well  a^  of  the  said  first  party,  of, 
in,  and  to  the  above  described  p>remises,  with  the  appurte- 
nances, as  fully  to  all  intents  and  jn/rposes,  as  first  party  hath 
power  and  authority  to  grant,  sell,  and  convey  the  same  by 
■virtue  of  the  said  Trust  Deed. 

Ackgt.,  dated  Jan.  5,  1SS2. 

Should  no  trust  deed  be  sliown  in  tlio  examination.  np]>end 
the  power  of  sal»^-  uiider  which  the  trustee's  deed  is^iven,  as 
follows : 

Note. —  The  Trust  Deed  from  John  Peterson  and  wifeto 
Pliny  B.  Smith,  dated  May  1,  18S0,  and  recorded  May  '2, 
1880,  as  Doc.  252,  in  book  JflO  of  Records,  page  512,  provides 
in  trust,  that  in  case  of  defudi  in  the  payment  of  said  note, 
or  any  part  thereof,  according  to  the  tenor  and  effect  of  said 
note,  then,  on  application  of  the  legal  holder  of  said  note,  to 
sell  and  dispose  of  the  said 2>remises,  and  all  the  right,  title, 
benefit  and  equity  of  redemption  of  said  first  party,  their 
Jceirs  an/1  assigns  therein,  at  public  auction,  at  the  North  door 
of  tlie  Court  House,  in  Chicago,  Illinois,  or  on  said p)remises, 
as  may  be  specified  in  the  notice  of  such  sale,  for  the  highest 
aiul  be^t  price  the  same  wild  bring  in  cash,  at  least  thirty  days' 
public  notice  having  been  previously  given  of  the  time  and 
place  of  such  sale,  by  advertisement  in  one  of  the  daily  or 
u^eekly  nevispapers  at  that  time  published  in  said  City  of 
Chicago;  and  U)  make,  execute  and  deliver  to  the  pun-Jianeror 
purchafters  at  such  sale,  good  and  sufiicimd  deed,  or  <lirds  of 
cimvcyance  for  the  2>^'<^>nise8  sold,  *  *  ^<-  *  wliicJi  sale 
or  sales  so  made  shall  be  a  perpetual  bar,  both  in  law  and  in 
equity,  against  the  said  fimt  jxtrty,  their  heirs  ami  axsigns, 
ami  all  uth<:r  persons  claiming  the  premises  aforesaid,  or  any 


314:  AnsTnACTS  of  title. 

2mH  thereof,  lij,  from,   through   or   under  said  first  pnrtij. 
or  any  of  them. 

Secoiifl  peirty,  with  or  without  re-eulvertmng,  is  herehij 
author Izeel  and  empowered  to  postpone  or  adjourn  said  sale 
from  time  to  time  at  his  discretion^  and  also  to  sell  said 
p)remises  entire,  without  divisio7i  or  in  parcels,  as  he  vuiij 
thinh  best. 

In  case  of  a  hreach  of  any  of  the  covenants  or  agreements 
herein,  hy  first  party,  said  p>i'<i'>nises  shall  hesid)ject  to  sale  and 
conveyaiice,  on  request  of  the  legal  holder  of  said  note,  in 
like  manner  and  with  the  same  effect  as  if  the  said  indebted- 
ness had  matured. 

First  jyarty  covenants  and  agrees  that  in  case  of  a  sale  and 
conveyance,  as  aforesaid,  of  said  premises,  the  deed  and  deeds 
(f  conveyance  made  in  pursuance  of  such  sale  shall  he  prima 
fdcie  evidence  of  the  due  compliance  with  and  performance 
of  the  terms,  conditions  and  requirements  of  this  deed  of 
trust,  hy  second  party  or  his  successor  in  trust  aforesaid, 
in  advertising  and  making  such  sale  and  conveyance,  to  the 
extent  of  the  recitals  contained  in  such  deed  or  deeds. 

Wliere  a  trustee's  deed,  made  upon  a  sale  under  a  valid 
deed  of  trust,  shows  the  sale  to  have  been  made  in  strict 
conformitv  with  the  power  contained  in  the  trust  deed,  and 
the  purchaser  has  had  no  notice  of  any  irregularities  in  the 
sale,  his  title  will  be  protected,  as  respects  any  such  irregu- 
larities, if  any  there  were,  as  that  of  an  innocent  purchaser; ' 
but  tlie  payment  of  the  debt  secured  by  a  deed  of  trust 
defeats  tlie  power  of  sale,  and  a  purchaser  at  such  sale  must 
see  to  it  that  the  grantor  in  such  trust  deed  is  in  default, 
and  that  some  part  of  the  debt  is  due  and  unpaid.' 

§  If!.  JlortJ^airees'  Deeds.  ]\rortgagees'  deeds,  made  in 
pursuance  of  a  power  of  sale,  differ  in  no  important  par- 
ticular from  conveyance  by  trustees,  the  mortgagee  being, 

'  Hosmer  v.  Campbell,  08  111.  572;         » Ventres  v.  Cobb,  105  III.  Sd. 
Montague     v.    Dawes,    14     Allen 
(Mass.),  369. 


OFFICIAL   CONVEYANCES.  815 

for  the  purposes  of  the  conveyance,  an  executor  of  an 
express  trust.  He  is  hekl  to  the  same  strict  rules  that  regu- 
late the  conduct  of  other  trustees,  and  can  not  exceed  the 
express  powers  under  which  he  acts.  A  mortg-agee  may 
sell  the  equity  of  redemption  of  the  mortgagor  and  such 
interest  as  is  conveyed  to  him  by  the  mortgage  under  Avhich 
he  sells,  but  he  can  not  sell  the  equit\'  of  redemption  by  itself; 
nor  can  he  sell  an  undivided  portion  of  his  interest  in  the 
land  incluiled  in  the  mortgage.  A  proper  execution  of  the 
power  of  sale  requires  him  to  sell  all  he  is  entitled  to  under 
it,'  and  for  the  same  reason  he  has  no  right  to  sell  a  greater 
interest  than  the  mortgage  gives  him  or  authorizes  him 
to  sell.  A  violation  of  these  rules  will  render  the  sale 
invalid.'  The  recitals  of  a  morti!:afj:ee's  deed  are  material  to 
its  validity,  as  tending  to  show  a  due  execution  of  the 
power  and  compliance  with  the  conditions  of  the  trust,'  and 
should  be  shown  in  the  abstract  in  the  same  manner  as 
indicated  in  case  of  trustees'  deeds.*  The  original  purchaser 
at  a  sale  by  a  mortgagee,  under  a  power  of  sale  contained 
in  the  mort<j:a<j:e,  is  charfreable  with  notice  of  defects  and 
irregularities  attending  the  sale,  and  can  not  evade  the 
effect,'  but  it  would  seem  that  as  to  remote  purchasers,  the 
sale  is  only  voidable  on  proof  of  actual  knowledge  of  such 
defects  acquired  before  the  consideration  has  been  paid.*  It 
has  been  held,  however,  that  a  properly  executed  deed  recit- 
ing strict  conformity,  the  purcliaser  having  no  actual  knowl- 
edge or  notice  of  any  irregularity  and  taking   such   deed 

'  Fowle  v.  iNIorrill,  10  Allen,  3.j0;  claiinin^c  iimlcr  tlKMiioit^'a;^'('«'\vitli 

Torrcy  i'.  Oxjk,  IIG  Ma.ss.  UV-i.  constructive  notico  tliat  tlKiv   hail 

'Donohuc  r.  Chutnj,  11  llt.'i>ort<^T,  been  a  valid  sjilc  unth-r  tlu*  ixiwcr, 

22.5.  although  the  dftnl   may  l)e   di'fect- 

'Gihlxinsr.  Hoag,  95  111.  45.  ively   executed   ho  n.s  not  to   pass 

*  Where  a  dee<l  for  land  sold  un-  the  legal   title:  Gilihons  v.   Hoag, 

der  a  power  in  a  mortgage,   recit-  95  111.  573. 

ing  correitly  all  the  fa<tH  Hhowing  ^Ilaniilton   v.    Luhukce,    51    111. 

a  nj-'ht  to  make  the  sale,  in  record-  415.     Hut  wet'  Ilosmer  v.  ( 'aiii|ilM  II, 

ed  ill  a,.t  time,  the  recrjrd  thereof  9H  III.  57'J. 

will   affect  all   iHib4jnj   thereafter  '(Jrovtr  v.  Hale,  107  III.  GIW. 


316  ABSTRACTS   OF    TITLE. 

upon  the  strength  of  the  assurances  therein  contained,  will 
protect  the  title  of  such  purchaser.' 

§  17.  Executors  and  Adiniiiistrators.  The  real  estate 
of  a  tleceascd  person  is  frecjuently  conveyed  thiough  the 
media  of  what  are  known  as  ''  personal  representatives,"  con- 
sisting of  executors,  or  persons  specifically  designated  for 
that  ])urpose  by  the  decedent,  and  administrators,  who  act 
l>v  virtue  of  an  appointment  under  tlie  law."  An  executor 
may  sell  and  convey  lands  held  in  sjjecial  trust  without  the 
intervention  of  a  court,  but  not  sucli  lands  as  are  sold  in 
due  course  of  administrati(jn  to  ]»ay  decedent's  debts,  while 
an  administrator  can  do  no  act  ali'ecting  lands  without  spe- 
cial orders  of  a  court.  In  case  of  sales  by  either  olHcer,  no 
title  passes  until  the  execution  and  dcliveiy  of  a  deed,'  and 
without  such  title  as  the  deed  conveys,  the  i)urchaser  can 
not  maintain  or  defend  ejectment  against  or  by  the  heir.* 

§  IS.  Executors'  Deeds.  A  testamer.tary  executor 
stands  in  the  place  of  and  represents  his  testator.  lie  de- 
rives his  power  primarily  from  the  ^vill,  and  in  this  respect 
differs  some\vhat  from  an  administrator,  whose  sole  power  is 
derived  from  the  law  and  the  directions  of  the  court."" 
When  acting  under  a  naked  testamentary  ai)pointment,  his 
powers  are  co-extensive  with  those  of  the  administrator,  and 
he  is  bound  by  the  same  rules,  and  subject  to  the  same  re- 
strictions. But  the  executor  may  also  be  a  trustee,*  and, 
when  acting  as  such,  the  scope  of  his  powers  is  measured 
and  limited  by  the  will  which  appoints  him.  The  distinction 
therefore,  must  ever  be  kept  in  view  of  the  powers  and 
duties  of  an  executor,  as  such,  and  those  which  may  devolve 

'  Hosmrr  v.  Campbell,  98  111.  573.  confirmation    vests    the    equitalile 

*  "Legal"  or  "Personal  repre-  title  in  the  pvuxliaser. 
sentative  "    in  the  commonly  ac-  ■*  Doe  v.  Hardy,  52  Ala.  291 ;  Grid- 
cepted  sense,  pieans  administrator  lej'  v.  Pliillips,  5  Kan.  349. 

or    executor.     But  this  is    not  the  '  Walker  t?.  Craig,  18111.  16;  Van 

only  definition.   Itmay  meanheii-s,  Wickle  r.  Calvin,  23  La.  Ann.  205; 

next  of  kin,  or  descendants:    War-  Gilkoy  v.  Hamilton.  22  Mich.    283. 

necke  v.  Leml)ea,  71  111.  91.  ">  Pitts  v.   Singleton,  44  Ala.  363. 

*  A  proxjerly  conducted  sale,  after 


OFFICIAL    COXVEYAXCES.  317 

upon  him  as  trustee,  and  not  as  executor.'  Under  his  testa- 
mentary authority,  he  may  sell  land,  and  otherwise  execute 
the  trusts,  ami  exercise  the  powers  enumerated  and  con- 
ferred in  the  will,  subject  to  the  general  regulations  of  the 
statute,  and  free  from  the  control  or  intervention  of  a 
court,*  but  where  authority  is  not  expressly  given,  or 
where,  during  the  administration,  he  performs  the  ordinary 
offices  of  an  executor,  as  where  h\nd  is  sokl  to  pay  the 
debts  of  decedent,  no  express  power  being  given,  he  must 
first  obtain  authority  or  license  from  the  probate  court,  and 
his  sale  must  be  rejiorted  to,  and  continued  by,  such  court 
before  a  deed  can  lawfully  issue  to  the  purchaser.  An  exec- 
utor's deed,  therefore,  will  be  governed  by  the  law  relating 
to  trustees  or  administrators,  according  as  he  may  convey 
in  one  or  the  other  capacity,  and  the  reader  is  referred  to 
the  remarks  on  those  classes  of  deeds  respectively.'  In 
either  case,  the  authority  of  the  deed  must  precede  it;  in 
the  one  case  the  will,  showing  the  power  of  sale  or  trust, 
and  the  manner,  if  stated,  in  which  the  power  must  be 
exercised  or  the  trust  executed,  and  in  the  other,  the 
license,  report  and  conlirination.  while  a  syno]isis  of  the 
jn-oltate  of  the  will  must  be  shown  in  l)oth  instances.  As 
in  all  other  cases  of  fiduciary  conveyances,  the  deed  itself 
must  show  substantial  compliance  with  the  requirements 
of  the  will  and  ol"  the  law.  :in<l  be  in  other  respects  regular. 
§  10.  Administrators'  Deeds.  An  administi-ator  is  re- 
garded as  an  executive  officer  of  the  court,  while  he  also 
occupies  the  relation  of  trustee  to  the  estate,  its  creditt)rs 
and  distributees.'  Although  he  may  not  possess  .as  much 
power  as  an   executor,  the  latter  deriving  his  power  from 

'  Warfif'M   V.    Braml,     i:^     Kush  Kcni-ral  wonls  do  not  confor  power 

{Ky.),  77;  White  v.  Cluver,  r,!i  III.  U)  si'li   lands:     SknnuT   r.  Woo.!. 

462.  70  N.  C.  1(»!». 

'  niifkinj^hamu.Wi'S'^oii.  .Il  Miss.  'See  "Judicial   and    Exccntion 

Mti;    Whitman   v.    Fislu-r,    71  111.  Sah-s,"   and  llu-  fhaptrr  on  Tc^Ui- 

117;  Cronise  r.  Hardt, -17  Md.   'i'i'];  nn-ntary  ConvcyancfH. 

JolkH    V.    Barrett,    .V2     Mias.    SlTj;  ♦  Win^ate  v.    Pool,    en   111.    118; 

IIukIk-m  v.  W.-ishin^m,  72  III.  84.  SUiU?  v.  Meagher,  41  Mo.  350. 
liut   th<'   |K)\ver   must  he  explicit; 


318  AliSTUACTS    OF    TITLE. 

tlie  tostiitor  and  the  law,  and  the  administrator  fi'om  the 
hiw  oidy,'  lie  yet  possesses  all  necessary  power  to  si'U  luo])- 
crty,  negotiate  secnrities,  and  to  settle  and  pay  debts,"  but 
nnder  the  order  and  direction  of  the  court.  He  takes 
neither  an  estate,  title,  or  interest  in  the  lands  of  his  in- 
testate,' bnt  a  mere  naked  power  to  sell  for  spec i lie  })ur- 
poses.'  He  takes  the  land  as  he  finds  it,'  and  having  no 
interest  therein,  can  maintain  no  action  to  perfect  the  title 
or  relieve  it  of  any  burden,"  and  must  sell  it  as  he  finds  it.' 
An  administrator's  deed  derives  its  primary  validity  from 
the  order  of  the  court  directing  the  sale  of  the  land  in 
question,  and  this  order,  together  with  a  synopsis  of  the 
preliminary  proceedings  Avhich  induced  it,  and  the  report  of 
sale  and  confirmation,  should  precede  the  deed  in  every 
instance.*  The  power  to  sell  is  a  personal  trust,  which  can 
not  be  delegated,"  and  the  sale  being  a  fiduciary  act  based 
upon  statute,  must  show  affirmatively  a  strict  compliance 
with  the  law.'"  In  addition  to  the  report  of  sale,  a  substan- 
tial account  of  same  is  also  incorporated  into  the  deed,  and 
this,  together  with  all  other  material  recitals  tending  to 
show  a  full  compliance  with  the  decrettd  order  and  statu- 
tory requirements  should  be  stated  with  reasonable  detail 
in  the  abstract.  A  form  is  here  appended  for  further  illus- 
tration : 

'  Gilkey  v.  Ilamilton,  22  Mich,         '  Gridley  u.  Watson,  53  111.  186. 
283.  ^  T,oMoyne  v.  Quiniliy,  70  111.  399; 

2  Walker  v.   Craig,   18   111.    116.      Ryan  v.  Duncan,  88  111.  146. 

Real  estate  can  not  bo  sold  by  an  '  Martin  v.  Bea.sley,  49  Ind.  280. 

administrator  unless  the  personal  *  See  Probate  Proceedin<^s,  t)i/ra. 

estate  is  insufficient  to  pay  the  lia-  '  Chambers  t\  Jones,  72  111.  275; 

bilities;    and    ordinarily,    only  so  Gridley  v.  Philips,  5  Kan.  349. 

much  should  be  sold  as  is  neces-  '"  Fell  v.  Young,  03  111.  lOG;  Lock- 

sary  for  that  purpose:     Newcomer  wood  v.  SturdcA'ant.  6  Conn,    886; 

V.  Wallace,  30  Ind,  216;  Foley  v  Convin  v.  Merritt,  3  Barb,  341.  An 

McDonald,  46  Miss,  238,  administrator's    deed    for    land  is 

3  Ryan  v.  Duncan,    88    111.    144;  not  admissible  as  evidence  without 
Stuart  V.  Allen,  16  Cal.  473.  proof  that  the  maker  was  adminis- 

•"  Smith  V.  McConnel,  17  111.  135;      tiator:    Ury  v.  Houston,  36  Tex. 
Floyd  V.  Herring,  64  N.  C.  409.  260. 


OFFICIAL   CONVEYANCES.  319 

Huntington  W.  Jael^son  as  ad-'^      Administrator'' s  Deed. 

m  in  istrator  of  the   estate  of        Dated  Jidy  15,  1SS3. 

John  Ji.  Thompson,  deceased,         liecorded  Aug.  4,  1SS2. 

late  of  Cook  County,  Ills.,        i      Dook  119,  Page  J^IO. 

to  /Sets forth,  that  the   Pro- 

James  McHenry.  Vote  Court,  of  Cook  County, 

Doc.  125,1^.16.  Illinois,  at   a  regular  term, 

thereof,  on  May  10, 1S82,  in 
a  certain  cause,  brought  under  the  statute,  wherein  said  Hunt- 
ington Tr,  Jackson,  as  Administrator  of  the  estate  of  said 
John  R.  Thompson,  deceased,  was  plmntiff,  and  George  P. 
Thompson  and  Mary  E.  TJwmpson,  were  defendants,  did,  by 
order  duly  entered,  empoiver  and  direct  said  Hmtington  W. 
Jackson,  as  .such  Administrator,  to  sell  at  jmblic  vendue  the 
real  estate  of  said  John  P.  Thompson,  deceased.,  hereinafter 
described,  for  the  purpose  of  paying  the  just  claims  against 
his  estate. 

That  in  pursuance  of  said  decretal  order,  said  first  party, 
as  such  a/hninistrator,  having  given  due  public  notice  of  the 
intended  sale  by  causing  a  notice  of  tJie  terms,  time  and  place 
of  such  sale,  together  with  a  description  of  the  real  estate  to  be 
sold,  to  be  previously  posted  for  four  weeks,  at  four  of  the 
most  public  places  in  the  county  ivhere  such  real  estate  was 
sold,  and  also,  to  be  published  for  four  successive  weeks  prior 
to  said  sale,  in  the  Chicago  Legal  News,  a  neivsjxfper  prddished 
in  said  Cook  County,  the  county  where  such  real  estate  was 
sold,  agreeably  to  the  order  and  directions  of  said  Probate 
Court,  and  in  accordance  with  the  statute  in  such  cases  made 
and  provided,  did,  on  June  15,  1882,  pursuant  to  the  order 
and  notice  aforesaid,  sell  at  public  vendue  the  real  estate  of 
said  John  Ti.  Thompson,  deceased,  in  said  order  described,  to 
James  McHcnry,  he  being  the  highest  bidder  therefor. 

That  first  2)arty  made  and  filed  in  the  office  of  the  clerk  of 
said  Probate  Court  a  complete  report  of  his  proceedings  and 
Side  under  said  order,  and  said  Probate  Court  having  care- 
fully exam,ined  the  same  on  July  10,  1882,  finding  the  same 
correct,  did  ajtjn'ove  and  confirm  the  same,  and  ordered  said. 
Huntington  W.  Jackson,  as  such  administrator,  to  execute, 
acknowledge  and  deliver  a  deed  <f  said  real  estate  to  second 


320  ABSTRACTS    OF   TITLE. 

j^nriy,  on  his  complying  with  the  terms  of  saidsale,^  and  that 
second  jHtrff/  has  in  all  things  complied  with  theteiins  of  said 
sale  on  his  part  to  he  performed. 

Noio,  therefore,  first  p)arty,  in  consideration  of  the  premises 
and  $100.00,  grants,  hargains  and  sells  land  in  Cook  Coiinty, 
111.,  to  wit:  S^JIere follows  the  description  of  the  land  accord- 
ing to  the  deed.'] 

Together  with  all  and  singtdar  the  hereditaments  and  ap)- 
pnrtenances  therevnto  belonging,  and  all  the  estate,  right,  title^ 
interest,  claim,  and  demand  ivh  at  soever,  at  law  or  in  eqtiity^ 
wJiich  said  John  jR.  Thompson,  deceased,  had  at  the  time  of 
his  death,  in  and  to  said  premises. 

To  have  and  to  hold  the  same  unto  second  party,  his  Jieirs 
and  assigns  forever,  as  f idly  and  effectually,  to  all  intents  and 
purposes  in  law,  as  second  party  might,  could  or  ought,  to  sell 
and  convey  the  same,  hy  virtue  of  said  decretal  order. 

Certificate  of  acknowledgment,  dated  July  15,  1882. 

The  doctrine  of  caveat  emptor  applies  to  all  sales  by  the 
administrator,''  and  the  purchaser,  who  is  presumed  to  have 
made  all  necessary  inquiries,  takes  the  title  at  his  peril,"  and 
subject  to  all  liens,  except  those  for  the  pa^nnent  of  Avliich 
the  land  is  sold.*  The  purchaser  has  no  right  to  the  land 
until  the  sale  has  been  confirmed,'  but  Avhere  the  sale  has 
been  made  under  a  proper  order  of  the  court,  and  reported 
to  and  confirmed  by  it,  it  conveys  title  even  though  the 
proceedings  be  irregular." 

§  20.  Administrator  with  Will  Annexed.  An  ad- 
ministrator with  the  will  nnnoxed  occupies  much  the  same 
position  as  an  executor  and  may  exercise  many  of  the  exec- 

'  One  who  produces  an  adminis-  ''Henderson  u.Whitinger,  56  Ind. 

tra tor's  deed    as  evidence  of    his  131. 

title,  must  show  that  its  execution  ^  Mason  v.  Osgood,  64  N.  C.  467; 

was  authorized.     LaPlante  v.  Lee,  Rawhngs  v.  Bailey,  15111.  178;  Ury 

83  Ind.  155.  v.  Houston,  36  Tex.  260. 

«  McConnell    v.    Smith,    39    111.  «  Thorn  v.   Ingram,   25  Ark.  52; 

279.  Myer  v.  ]\IcDougal,  47  111.  278.  Com- 

«  Bishop  V.  O'Connor,  CD  111.  431.  pare  Chase  v.  Ross,  36  Wis.  267. 


OFFICIAL   CONVEYANCES. 


321 


utor's  powers.*  He  acts  under  the  will  ami,  as  a  rule,  any 
power  given  to  the  executor,  which  is  not  in  the  nature  of  a 
personal  trust,  that  is,  where  the  power  given  belongs  to  the 
office  of  executor  and  not  to  the  person,  may  be  exercised 
by  an  administrator  with  the  will  annexed.'  Where  the 
will  constitutes  a  personal  trust  which  the  executor  alone 
could  execute  without  the  intervention  of  a  court  or  some 
statutory  regulation,  the  trust  will  not  pass  to  the  adminis- 
trator with  the  will  annexed,  and  sales  of  real  property  of 
the  testator  by  the  administrator  will  be  without  authority 
and  void.'  Where  the  will  gives  to  an  executor  therein 
named  powers  and  duties  to  be  performed  which  do  not 
ordinarily  come  within  the  scope  of  an  executor's  functions,* 
or  where  land  is  devised  to  him  to  be  sold,'  an  administrator 
with  the  will  annexed  has  no  power,  without  the  aid  of  a 
court,  to  sell  the  lands  so  devised  or  directed  to  be  sold,  or 
execute  the  ])owers  given  to  the  executor." 

§  21.  Guardians'  Deeds.  Guardians'  and  conservators' 
frequently  make  conveyances  of  the  real  estate  of  their 
wards,  either  to  pay  debts,  or  for  the  support  and  educalio]! 


'  An  administrator  mm  tcsfa- 
mento  annexo  L**  appointed  on  the 
following  occasions:  1.  Where  no 
executor  is  aj^pointed  by  the  will. 
2.  "Where  an  e.xecutor  is  appointed 
but  dies  before  the  testator.  3. 
"Where  from  any  cause  the  execu- 
tor becomes  incompetent,  disijuali- 
fied  or  renounces  the  office.  4. 
Wliere  the  executor  dies  before  the 
completion  of  administration;  in 
this  latter  case  tin.'  administrator  is 
alsf)  administrator  dc  Inniin  nan. 

'  Anderson  v.  McClowan,  45  Ala. 
4fi2;  Prescdtt  r.  l^Iorso,  M  Me.  422; 
Belcher  v.  I5ranch,  11  It.  I.  22(5. 

*  Anderson  v.  McGowan,  4.">  Ala, 
280;  DunniuR  r.  Ocean  Nat.  Hank, 
61  N.  Y.  4'J7;  Iloss  v.  Barclay,  18 
Pu.  St.  17U. 

♦  In«le  r.  Jonc-fl,  'J  Wall.  4^0. 

21 


'  Nicoll  r.  Scott.  99  111.  509;  Dun- 
ning V.  Ocean  Nat.  Bank.  Gl  N.  Y. 
497;  Gilchrist  v.  Kea,  9  Paige,  6G. 

'  Such  trusts  fre<iuentl}'  devolve 
upon  a  trustee  whom  the  court 
may  appoint  for  that  purpose: 
Farwi'll  V.  Jacobs,  4  ]Mass.  034. 

'  The  common  law  recogniy.ed 
four  kinds  of  guardians,  to  wit: 
in  chivalry,  by  nature,  in  socage, 
and  by  nurture.  The  distinctidus 
do  not,  and  never  have  existed  in 
the  United  States.  The  statutory 
guardianshiji  is  the  only  kind 
which  (igunsin  land  titles. 

'  The  estate,  ami  fre<|Uently  the 
person  as  well,  of  pi-rsons  mm 
cumj)08  mciitis,  is  oft«'n  conliilcd 
to  the  care  of  a  statutory  guardi:in 
gen<rally  called  a  conservator  or 
comniillee. 


■  >'J'2  ABSTRACTS    OF    TITLE. 

of  the  ward,  or  for  the  purpose  of  investing  the  proceeds; 
and  such  conveyances,  if  attended  by  all  the  statutory  req- 
uisites, are  ctrectual  to  convey  all  the  title  which  the  ward 
may  have  possessed  at  the  time  of  the  sale.'  Such  sales  are 
made  under  the  direction  of  the  probate  court  upon  petition 
by  the  guardian  stating  the  necessary,  jurisdictional  facts,"" 
and  after  notice  of  such  application,  in  the  manner  provided 
by  law.'  Such  sales  must  be  further  reported  to  and  con- 
lirmed  by  the  court  granting  the  license,*  but  the  title  of 
the  ward  will  not  be  divested  until  a  deed  has  been  ordered 
and  actually  executed.'  The  deed  should  therefore  be  pre- 
ceded in  the  absti-act  by  brief  recitals  or  references  to  all 
the  jurisdictional  facts.  These  would  consist  of  an  ab- 
stract of  the  letter  of  guardianship,  but  not  necessarily  of 
the  preliminary  matters  of  inducement;  a  letter  of  guard- 
ianship is  in  the  nature  of  a  certificate  or  commission; 
and  in  the  absence  of  any  statutory  provision  requiring  it, 
it  is  not  essential  to  its  validity  as  evidence  of  the  appoint- 
ment that  it  should  recite  the  mode  and  particulars  of 
the  emanation,  and  all  reasonable  presumptions  must  be  in- 
dulged in  favor  of  its  having  emanated  regularly  and  after 
lawful  proceedings;'  a  brief  synojDsis  of  the  petition  and 
notice,  oi-  at  least  references  to  those  instruments ;  a  syn- 

'  Wisenor  v.  Lindsay,  33  La.  An.  defective  merely,  the  jurisdiction 

1211;  Mulford  v.  Beveridge,  78  111.  is  saved:    Lyon    v.    Vannatta,    35 

445;  Fitzgibbon    v.   Lake,    29  111.  Iowa,  521. 

165.  ■*  Confirmation  is  essential  to  the 

'  The  petition  is  of  paramount  validity  of  the  sale.     People  v.  Cir- 

necessity,  and,  it  seems  that  with-  cuit  Judge,  19  Mich.  296;  White  v. 

out  such  a  petition  the  court  gets  Clawson,  79   Ind.    188;  Chapin  v. 

no  jurisdiction  to  grant  a  license  Curtenius,  15  lU.  427. 

to  sell:  Ryder V.  Flanders,  30 Mich.  'Doe  v.  Jaciison,  51  Ala.  514. 

336.  « Burrows  V.  Bailey,  34  Mich.  64. 

^  Tlie  notice  is  jurisdictional,  and  Tlie  proceedings  by  a  guardian  to 

a  sale  without  giving  tlie  statutory  sell  his  ward's  lands  are  statutory, 

notice  lias  been    held    absolutely  and  a  material  deviation  from  the 

void:    Rankin  v.  Miller,  43  Iowa,  requirements  of  the  statute  is,  in 

11:   Kennedy  v.   Gaines,  51  Miss.  general,  jurisdictional 
625.     If,    however,   the    notice    is 


OFFICIAL   CONVEYANCES.  323 

opsis  ot  the  decree  or  license  of  sale ;  and  reference  to  the 
guardian's  report  of  sale,  and  order  of  conlirination. 

§  22.  Trustees  Can  Not  Become  Purchasers.  It  is  a 
settled  principle  of  equity,  that  no  person  who  is  placed  in 
a  situation  of  trust  or  confidence  to  the  subject  of  the  sale 
can  be  a  purchaser  of  the  property  on  his  own  account.  The 
principle  is  not  confined  to  a  particular  class  of  persons,  such 
as  guardians,  trustees,  etc.,  but  is  a  rule  of  universal  appli- 
cation to  all  persons  coming  within  its  principle,  which  is, 
that  no  party  can  be  admitted  to  purchase  an  interest,  wliere 
he  has  a  duty  to  perform  that  is  inconsistent  with  the  char- 
acter of  purchaser.  The  reason  of  the  rule  is,  not  because 
they  might  not,  in  many  instances,  make  fair  and  honest 
disposition  of  it  to  themselves,  but  because  the  probability 
is  so  great  that  they  would  frequently  do  otherwise,  with- 
out danger  of  detection,  that  the  law  considers  it  better  pol- 
icy to  prohibit  such  purchases  entirely  than  to  assume  them 
to  be  valid  except  where  they  can  be  proved  to  be  fraudu- 
lent. A  trustee  is  not  barred  from  ever  becoming  a  pur- 
chaser of  what  had  once  been  part  of  the  trust  estate.  "When 
the  title  of  the  trust  estate  has  passed  by  a  valid  sale,  in 
which  the  trustee  has  no  interest,  and  all  interest  of  the  ces- 
tui que  trust  in  it  has  ceased,  the  trustee  becomes  a  stranger 
to  the  property,  and  may  purchase  it  like  any  other  stran- 
ger. Agents  may  be  quasi  trustees  to  bring  them  within 
the  broad  rule  applicable  to  trustees  generally,  that  they 
can  not  become  purchasers  from  their  ]irinci})als.  But  an 
agent  generally  comes  within  tliis  rule  only  when  his  agency 
is  so  connected  with  the  sale  as  to  make  it  his  duty  to  obtain 
the  l>est  terms  for  his  ])rinci})al,  when  lie  can  not  be  agent 
to  sell  and  principal  to  buy.  "  The  rule  forbidding  conllict 
between  interest  and  duty  is  no  respecter  of  ])ersons.  It 
imj)utes  constructive  fraud,  I)ecauso  the  temptation  to  act- 
ual fraud  and  the  facility  ui  concealing  it  are  so  great.  And 
it  imputes  it  to  all  alike,  who  come  within  its  sc(»j)e,  how- 


Ol'J:  AliSTKACTS    OF    TITLE. 

ever  much  or  however  liltle  open  to  susi)ieion  of  actual 
fraud."  ' 

The  principles  which  prohibit  the  trustee  from  becoming 
a  ]»urcliaser  extends  to  all  sales  of  the  trust  property 
Avhether  made  by  the  trustee  himself,  under  his  powers  as 
trustee,  or  under  an  adverse  proceeding.  As  a  general 
trustee  of  the  subject  it  is  his  duty  to  make  it  bring  as  much 
as  possible  at  any  sale  tliat  may  take  place,  and  therefore 
he  can  not  put  himself  in  a  situation  where  it  becomes  his 
interest  that  the  property  should  bring  the  least  sum.^ 

§  23.  Continued — Exceptions  to  and  Qualifications  of 
tlie  Rule.  The  above  remarks,  though  stating  the  generally 
received  doctrine,  are  yet  subject  to  many  qualifications 
growing  out  of  the  statutes  and  their  judicial  interpretation, 
and  while  they  still  apply  in  all  their  pristine  vigor  to  a 
large  class  of  fiduciary  relations,  to  certain  others  their 
effect  has  been  greatly  modified.  Thus,  a  purchase  of  land 
by  an  executor,  at  his  own  sale,  directly  or  indirectly,  is  not 
ordinarily  void,  but  only  voidable  at  the  option  of  the  heirs 
or  beneficiaries  seasonably  expressed.'  A  clear  and  un- 
equivocal affirmance  of  the  sale,  which  must  be  bona  fide, 
may  conclude  the  beneficiary,  if  under  no  disability  and  in 
full  knowledge  of  the  facts,  and  the  acceptance  of  proceeds 
by  the  beneficiary  would,  in  general,  amount  to  an  afiirm- 
ance.* 

A  marked  exception  to  the  rule  is  also  made  in  favor  of 
iruardians  ad  litem.  Unlike  other  guardians  and  ordinarv 
trustees,  a  guardian  ad  liteni  has  no   authority   or   control 

'Ryan,  C.  J.,  in  Cook  v.  Berlin  'I\rartin  v.  Wyncoop,  12Ind.  266. 

Mill  Co.,  43  Wis.  433;  Story's  Eq.,  ^YrAZij:v  v.  Lee.  42  Ala.  25;  Smith 

§  310:  Grumley  v.  Webb,  44  Mo.  444;  v.  Granbeny ,  39  Ga.  381 ;  Williams 

Blauveltv.  Ackermann,20N.  J.  Eq.  v.  Rhodes,  81  111.  571;  Fronebcrger 

141;R.  R.  Co.  V.  R.  R.  Co.,  19Gratt.  7".  Lewis,  70  N.    C.   456;  Dodge   v. 

(Va.)  592;  Boemm  v.  Schenck,  41  N.  Stevens,  94  N.  Y.  209. 

Y.  182;  Roberts  t;.  Roberts,  65  N.C.  •»  Boerum  v.  Schenck,   41   N.    Y. 

27;  McGowan  v.  McGowan,  48  Miss.  182:  Brantly  v.  Cheeley,  42  Ga.  209; 

553;  Goodwin  v.  Goodwin,  48  Ind.  Scott  v.  Mann,  33  Tex.  721. 
584;  Sheldon  v.  Rice,  30  Mich.  296. 


OFFICIAL    CONVEYAXCES.  6'2o 

over  the  person  or  property  of  the  infant  for  whom  he  acts 
and  no  right  to  receive  or  administer  the  proceeds  of  the 
minor's  property  which  may  be  soKl  in  the  suit  or  proceed- 
ino;  in  which  he  acts.  If  he  has  fairlv  advised  the  court  of 
the  infant's  rights  and  done  all  for  hun  that  the  facts  of  the 
case  required  him  to  do,  he  may  ]nirchase  and  hold,  in  his 
own  right,  the  property  of  the  infant  sold  under  an  order 
of  the  court  in  the  cause  in  which  he  was  appointed,  pro- 
vided such  purchase  was  in  good  faith  and  for  a  full  and 
valuable  consideration  paid  by  him.' 

All  such  sales,  however,  are  viewed  by  the  courts  with  a 
jealous  eye  and  set  aside  for  slight  cause,  and  titles  derived 
through  or  under  such  sales  are  questionable  at  best.  If 
re-enforced  by  a  quitclaim  or  confirmation  by  the  heirs  or 
beneficiaries,  they  become  less  obnoxious,''  yet  even  then 
they  are  far  from  perfect,  as  the  unsatisfied  rights  of 
creditors  may  raise  equities  sutficient  to  vacate  and  annul 
the  deed. 

'  Marsh  v.  Marsh,  Am.  Law  Rec.  of  the  disability  of  his  grantor,  it  is 

Nov.  1875.  essential,  in  most  cases,  that  some 

*  ^Vliere  one  receiving  title  from  affirmation  of  the  sale  be  obtained 

a  tru>tee  is  chargeable  with  notice  from  the  beueliciary. 


1. 

Assignments  generally. 

§  9. 

Voluntiuy  assigiinients. 

10. 

3. 

Validity  of  assignineuts. 

11. 

4. 

Formal  requisites. 

13. 

5. 

Title  of  assignee. 

6. 

Construction  and  effect. 

13. 

7. 

Conflict  of  laws — Foreign  as- 

14. 

signments. 

15. 

8. 

Insolvency. 

16. 

CHAPTER  XYIII. 

ASSIGNMENTS,  INSOLVENCY  AND  BANKRUPTCY. 

Bankruptcy, 

Jm'isdiction  and  practii^e. 
ClassiQcation — Procedure. 
Nature  and  effect  of  bank- 

ruptcj'. 
Bankruptcy  proceedings. 
The  assignment. 
The  assignep's  deed. 
Dischai'ge  in  bankiujjtcy. 

§  1.  Assicininoiits  Generally.  "An  assignment,"  ob- 
serves Mr.  BuiTill,' '*is  a  transferor  setting  over  of  prop- 
erty, or  of  some  right  or  interest  therein,  from  one  person 
to  another;  the  term  denoting  not  only  the  act  of  transfer, 
but  also  the  instrument  by  which  it  is  effected,"  When 
applied  to  real  estate  it  indicates  a  transfer  of  the  entire 
interest  of  the  assignor  in  the  transferred  property,  though 
in  England  it  is  usually  used  to  express  the  conveyance  of 
an  estate  for  life  or  years,"  and  has  also  the  same  signifi- 
cance in  this  country  in  connection  with  leasehold  interests. 
In  its  popular  acceptation,  in  the  United  States,  it  is  used 
to  distinguish  a  peculiar  class  of  conveyances,  usually 
resorted  to  by  persons  who  Jfind  themselves  in  embarrassed 
circumstances  or  are  unable  to  satisfy  the  full  demands  of 
their  creditors.  In  this  sense  they  are  classed  as  voluntary, 
or  such  as  are  made  by  the  free  act  and  deed  of  the  assignor; 
and  involuntary  or  statutory,  or  such  as  are  made  under 
compulsion  of  law  and  in  the  furtherance  of  statutes  of 
bankruptcy  or  insolvency.     In  all  cases  they  imply  a  trust 

'  Bun-ill  on  Assignments.  ^  2  Blk.  Com.  326. 

(326) 


ASSICINMEXTS,    IXSOLTENCY    ANT)    BANKKUPTCT.  327 

and  the  intervention  of  a  trustee.'  and_  conveyances  made 
directly  to  the  beneficiaries,  though  for  the  same  purpose, 
are  not  technically  assignments,^  and  come  under  the  pro- 
visions regulating  ordinary  deeds  of  transfer  and  sale. 

§  2.  A'oluntary  Assigimieiits.  The  power  to  make  an 
assignment  for  the  benefit  of  creditors  is  not  derived  from 
any  statutory  enactment.  Every  debtor,  whether  solvent 
or  insolvent,  possesses,  independent  of  statutory  grant,  the 
right  to  make  any  disposition  of  his  property  which  does 
not  interfere  with  the  rights  of  others;  in  other  Avords,  to 
make  an\^  honest  disposition  of  his  property  that  he  pleases. 
The  right  of  assignment  is  clearly  within  the  absolute  domin- 
ion which  the  law  empo^ve^s  every  man  to  exercise  over  his 
own.  Statutovy  provisions  concerning  assignments  are  to 
be  found  in  all  the  States,  yet  such  statutes  do  not  confer 
the  right,  but  merely  regulate  its  exercise,  subjecting  it,  as 
in  other  transfers  of  property,  to  certain  restrictions  and 
limitations  which  experience  has  demonstrated  to  be  wise 
and  just;  but  it  is  still  the  assignor's  voluntary  act,  and  not  the 
act  of  the  law.  So,  also,  the  power  of  the  assignee  is  fixed 
by  the  instrument  of  assignment,  which  is  at  once  the  guide 
and  measure  of  his  duty.  Beyond  that,  or  outside  of  its 
terms,  he  is  powerless  and  without  authority.  He  distrib- 
utes the  proceeds  and  disposes  of  the  estate  placed  in  his  care 
according  to  the  dictation  and  under  the  sole  guidance  of  the 
assignment,  and  the  statutory  provisions  merely  regulate 
and  guard  his  exercise  of  an  authority  derived  from  the 
will  of  the  assignor.  In  all  things  the  assignee  is  the  rep- 
resentative of  the  assignor,  and  must  be  governed  bv  the 
express  terms  of  his  trust.'  As  a  general  rule,  in  the  ab- 
sence of  special  statutory  restrictions,  a  delator  in  failin"-  cir- 
cumstances, acting  in  g(jod  faitii,  may  lawfully  jircfcr  ono 
creditor,  even  to  the  total  exclusion  of  all  the  otlioi-s;  and 
may  also,  in  like  good  faith,  in  a  rcas()nal>le  manner,  use  liis 

'  CV)ul«-Hi'.  Riflcftt.  1  Iowa.  !}H2;  B«>n  v.  McGrinv,  11  Iowa,  151;  (Jrif. 

DickhoM  V.  lijiwH-.n.  r,  (Jhiu  St.  218;  lin  v.   l{o«tr,  'M  l*a.  :JH2. 

Peck  V.  M<rrill.  20  Vt.  OHO.  »  In  re  U'ww,  81  N.  Y.  421;  Pills- 

»  Ik-acli  r.    Ili-st4)n.    47    III.    Wl;  hnrv  r.  Kinpin.  HI  N.  .7.  F^|.  (JIU; 

Kueu  V.  I'rtMUm,  24  Iiul.  'M't;  Jolin-  Hank  v.  WilliH,  7  W.  \a.  ;!I. 


32S  ABSTRACTS    OF    TITLE. 

property  by  mortgage,  })ledg-c  or  otherwise  in  raising  money 
to  j)ay  sucli  creditor.' 

§  3.  Yiilidity  of  Assii^ninoiits.  In  all  cases  Avhere  con- 
veyances are  made  for  the  ostensible  purpose  of  securing  an 
ecpial  distribution  among  creditors,  of  the  property  of  the 
debtor,  the  validity  of  the  conveyance  depends  upon  the 
intention  of  the  debtor.  If  the  intention  be  to  hinder  and 
delay  creditors  in  the  enforcement  of  their  demands  against 
such  debtor,  rather  than  to  secure  an  equitable  distribution 
of  the  property  among  creditors,  and  for  their  benefit,  the 
conveyance  is  fraudulent  and  void.  It  is  not  the  ell'ect  of 
such  conveyances  that  determines  their  validity,  for  every 
such  conveyance  in  ell'ect  hinders  and  delays  creditors.  It 
is  the  intention  that  controls,  and  that  inte.ntion  can  not  be 
better  determined  than  from  the  language  of  the  convey- 
ance, although  it  may  be  established  by  extraneous  evidence.^ 
A  full  narration  of  the  recitals  and  conditions  of  the  trust 
seems  desirable  in  all  cases  of  recent  conveyance,  as.  where 
it  a]ipears  from  the  face  of  the  deed,  that  the  motive  for 
making  it  was  to  prevent  a  sacrifice  of  the  property;  or  if 
there  be  reserved  to  the  assignor  any  benefit  or  advantage 
out  of  the  property  conveyed,  the  intention  as  well  as  legal 
effect  would  be  to  hinder  and  delay  creditors  and  the  con- 
veyance will  be  void.*  The  consideration  expressed  is  a 
matter  of  minor  importance,  the  true  consideration  being 
the  agreement  of  the  assignee  to  perform  the  trusts  imposed 
upon  him  by  the  assignment;  and  that,  in  contemplation  of 
law,  constitutes  a  full  and  complete  consideration.* 

§  4.  Formal  Requisites.  Though  voluntary  assign- 
ments are  founded  on  common  right,  yet,  to  prevent  fraud 
b}'  the  setting  up  of  fictitious  transfers  claimed  to  have  been 

'  Cuendet  v.   Lahmer,    16  Kan.  111.  298;  Vernon  v.  Morton,  8  Dana 

527.  (Kj-.),  263;  Phelps  v.  Curtis,  80  111. 

*  German  Ins.  Bank  v.  Nunes,  14  113;  Kayser  v.  Heavenrich,  5  Kan. 

Reporter,  206;  Mackie  v.  Cairns,  5  324;  Lockhart  v.  Wyatt,    10  Ala. 

Cow.    (N.   Y.)  547;   Henderson  v.  231:  Reed  t\  Pelletier,   28  Mo.  173. 

Downinp:,  24  Miss.  106.  •»  Tliomaa   v.    Clark.  (55  :\re.  296; 

2  Gardner  v.  Com.  Nat.  Bank,  95  Gates  v.  Labeaumc,  19  Mo.  17. 


ASSIGNMENTS,    INSOLVENCY    AND    BANKRUPTCY.  320 

made  for  the  benefit  of  creditors,  they  must  be  attended 
Avith  the  prescribed  legal  formalities  of  the  State  where 
made,  or  where  the  }iroperty  to  be  alfected  is  situated;  and 
unless  executed  in  conformity  with  such  laws,  are  inoper- 
ative and  void.  By  the  instrument  the  debtor's  property 
must  be  unconditionally  and  without  restriction  transferred 
to  the  assignee,  with  a  general  authority  to  him  to  receive, 
hold,  and  dispose  of  it  for  the  equal  beneht  of  all  the  cred- 
itors, in  the  order  of  preference,  if  any,  provided  for.' 

The  assignment  should  be  executed  with  the  same  solem- 
nities that  characterize  ordinary  deeds  for  the  conveyance  of 
land,  and  be  duly  acknowledged  before  an  authorized  oiiicer,' 
and  defects  of  this  nature  should  be  noted  by  the  examiner 
with  the  same  scrupulous  care  as  in  other  conveyances  be- 
tween individuals. 

Xo  particular  form  of  instrument  is  needed  to  constitute 
an  assignment,  and  any  valid  transfer,  intelligibly  indicating 
the  trusts,  will  sulHce.'  It  is  usual  to  set  out  the  real  estate 
conveyed,  eitlier  in  the  body  of  the  assignment  or  a  sched- 
ule thereto  annexed,  yet  such  is  its  force  as  a  conveyance, 
that,  when  made  in  general  terms,  it  passes  all  the  property 
Avhich  the  assignor  then  owned,  either  in  possession  or 
expectancy,  and  tlie  omission  to  mention  it  in  the  inventory 
would  not  prevent  the  title  from  passing  to  the  assignee.*  If 
tlie  instrument  mentions  specific  property,  without  a  clause 
of  general  conveyance,  or  even  makes  special  exce])tions,  it 
will  not,  for  that  reason,  be  void,  as  the  title  to  such  with- 
hold pr(jperty  ma}'  still  be  pui'sued  by  creditors,  their  rem- 
edies Ijeing  neither  Iiindeivtl  nor  delayed,"  and  so  long  as 
there  is  no  reservation  of  some  part  of,  or  some  right  or 
interest  in,  the  ])n)perty  actually  conveyed,  the  assignment 
will  be  valid.  The  statutory  recjuirenients  relate  mainly  to 
the  acceptance  of  the  trust  by  the  assignee,  filing  of  bond, 

'  Mo  Intin- r,  Ronson,  20  111.  500.  »  KMi;;ht   r.   W;it(rm;iii.    'M   Pa. 

*  Uritton  »-.  Ixniitz,  15  N.  Y.  .11.       .St.    L'."iH;    Iii;,M:iliain    v.    (iri^K'.    21 
»  N<»rtoii  7".  Ki-ariK-y.  10  Wis.  li:}.       Mi^^s.    22;    MatiH   v.    .Milnnan,    13 

♦  Hfxn'lxKiin  I'.  M<j!slu.T,  2  DlIUo  ^Vi^i.  fWU;  e'aqMiiUr  f.  UiuIitwimhI, 
(N.  Y.),  01.  lU  N.  Y.  520. 


330  ABSTRACTS    OF   TITLE. 

notice  to  civilitors,  etc.,and  in  these  respects  a  literal  c()in])li- 
ance  is  usually  necessary.  The  abstract  should  show  a  full 
synopsis  of  the  proceedings,  sufficiently  indicating'  a  compli- 
ance with  the  statute;  the  operative  })arts  of  the  instrument 
of  transfer,  including  the  trusts;  and  such  })ortions  of  the  in- 
ventory or  schedule  as  cover  the  real  estate  in  (piestion. 

§  5.  Title  of  Assignee.  It  is  a  usual  re(|uireinent  on  the 
part  of  the  assignee,  that  before  taking  possession  of  the 
assigned  estate,  he  shall,  witliin  a  stipulated  time  after  the 
filing  of  the  inventory,  execute  and  fdo  in  the  projier  offico,  a 
bond  conditioned  for  the  faithful  performance  of  his  duties ; 
and  it  has  been  held  that  the  absolute  title  to  the  property 
assigned  does  not  ]mss  until  this  bond  is  filed.  In  the  inter- 
val between  the  filing  of  the  assignment  and  the  filing  of 
the  bond,  the  inchoate  or  conditional  title  rests  under  the 
protection  of  the  court,  which  has  jurisdiction  over  the 
property,  but  none  over  the  assignee;  and  the  failure  to  file 
the  bond,  Avithin  the  prescribed  time,  is  equivalent  to  a  dec- 
lination of  trust  which  terminates  all  right  in  the  property 
which  the  assignee  may  have  acquired  by  the  filing  of  tlic 
assignment.'  Where,  however,  there  has  been  a  formal 
acceptance  of  the  trust,  the  transfer  is  complete  and  irrevo- 
cable, and  the  property  vests  in  the  assignee  for  the  benefit 
of  the  creditors.''  Such  assignee  is  not  regarded  as  a  pur- 
chaser for  value,  however,  and  has  none  of  the  equities  of 
such  purchaser.  He  stands  entirely  on  his  naked  legal  title 
and  this  he  can  only  acquire  by  an  observance  of  the  meth- 
ods prescribed  by  law.  The  filing  of  the  bond  in  such  case, 
unless  ex]iressly  made  so  by  statute,  is  not  a  condition  })rec- 
edent  to  the  vesting  of  the  estate,  nor  will  the  failure  to 
give  the  statutory  security  within  the  time  limited  invalidate 
the  transfer  or  restore  the  title  of  the  assigned  property  to 
the  assignor.  In  the  event  of  the  failure  to  file  a  bond,  as 
required  by  law,  the  assignee,  though  invested  with  title, 
has  no  power  or  authority  to  dispose  of  the  property  for  the 

'  Kingman  v.  Barton,  24  Minn.  Forbes  v.  Scannoll,  13  Cal.  242; 
295.  Brown  v.  Chaniljerlain,  9  Fla.  464; 

"  Hyde  v.  Olds,  12  Ohio  St.  591;      Hall  v.  Demiison,  17  Vt.  310. 


ASSIGNMENTS,    INSOLVENCY    AND    BANKRUPTCY.  331 

purposes  of  the  trust,  whicli  would  then  be  a  dry  trust, 
merely  to  take  possession  and  hold  until  he  should  become 
qualilied  and  empowered  to  dispose  of  it;  but  having  ac- 
cepted, he  can  only  be  relieved  of  the  trust  and  divested  of 
the  estate  by  the  order  of  a  court  of  competent  jurisdiction.' 

§  0.  Coiistructiou  and  EtFect.  An  assignment  for  the 
benefit  of  creditors,  conveying  proj^erty  to  trustees  with 
power  to  sell  and  to  apply  the  proceeds  in  papnent  of  debts, 
is  an  absolute  conve3'auce,  by  which  both  the  legal  and 
equitable  estate  is  divested  out  of  the  grantor  and  vested  in 
the  assignee,  subject  to  the  uses  and  ti'usts  in  favor  of  the 
creditors.'  "  An  assignment,"  says  Burrill,"'  "  is  more  than 
a  security  for  the  payment  of  debts ;  it  is  an  absolute  appro- 
priation of  the  property  to  their  payment.  It  docs  not 
create  a  lien  in  favor  of  creditors  upon  property  which,  in 
equity,  is  still  regarded  as  the  assignor  s,  but  it  passes  both 
the  legal  and  equitable  title  to  the  property  absolutely  be- 
yond the  control  of  the  assignor.  There  remains,  therefore, 
no  equity  of  redemption  in  the  ])ro})erty,  and  the  trust  which 
results  to  the  assignor  in  the  unem])loyed  balance  does  not 
indicate  such  an  equity."  The  title  in  the  hands  of  the 
assignee  is  relieved  of  none  of  its  burdens,  but  renuiins  sub- 
ject to  all  existing  equities.* 

§  7.  Conflict  of  Laws — Foreign  Assignments.  Deeds 
of  assignment  are  governed  by  the  same  general  rules  as 
other  conveyances,  and  when  executed  in  one  State  but  in- 
cluding lands  in  another,  their  validity  and  effect  as  instru- 
ments of  conveyance  of  such  lands  must  be  determined  l)y 
tlie  laws  of  the  latter  State.'  Theyluive  no  extra-territorial 
force,  yet  on  principles  of  comity,  an  assignment  valid  in  the 

•  Bn-nnan  v.  WillsDn.  71  N.  Y.  Hoirni.in  v.  Jlackall,  5  Ohio  St. 
r)02;  Tlira-sher  u.  BfUlly,  59  N.  V.  I'll;  Tuiikt  r.  Wulkiiis,  :J1  ArU. 
649.  4;!7. 

»  Dwi^litr.  Overton,  32  Tlx.  390;  *  Williams  v.  Wius(.r,   12  R.  I.  9. 

Van  K<-urfn  v.  .McI^u^'Iilin,  21  N.  »  St..iy,  Conlli.  t  of  Laws,   i-  '.Wti; 

J,  h>|.  103;  Briggs  r.  Davis,   21  N.  r'litl.r   v.    I)av(niH)it,    1    Pi.k.  HI; 

Y.  OTl.  I^iving    V.    Tain-,    100  Iowa,    2S2: 

*  Burrill  on  AKsignnjontH,  12;  and  (Jardiu-r  v.  Com.  Nat.  Bank  uf 
nee,  Briggh  v.  Duvia,  21  N.  Y.  577;  l*ruvi<lfnco,  95  111.  29W. 


332  ABSTRACTS    OF   TITLE. 

State  where  it  is  made,  and  where  the  assignor  resides,  will 
operate  on  the  assets  of  such  assignor  in  each  of  the  other 
States.' 

§  8.  Insolvency.  A  special  ]'>roccdure  is  provided  in 
most  of  the  States  for  the  distribution  of  the  estate  and 
effects  of  insolvent  debtors,  and  their  subsequent  discharge 
from  the  debts  thus  satislicd.  Such  i)roceedings  have  the 
same  general  effect,  within  the  jurisdiction  of  the  State,  as 
proceedings  under  the  national  bankrupt  laAv,  and  to  which 
they  bear  a  strong  analogy.  During  the  continuance  of  the 
l>anlvrui)t  law  their  operation  is  suspended,  and  owing  to 
this  and  the  infrequeucy  with  Avhich  the  remedy  has  been 
used,  but  few  instances  will  occur  where  conveyances  have 
been  made  under  same.  The  examjilcs  which  follow,  of  an 
abstract  of  proceedings  under  the  national  bankrupt  law, 
will  serve  as  an  illustration  of  the  method  of  showing  these 
matters  whenever  they  may  occur.  The  validity  of  titles  so 
derived  is  especially  a  matter  of  local  hnv  and  construction. 

§  9.  Bankruptcy.  At  the  date  of  this  writing  there  is 
no  national  bankrupt  law,  but  numerous  transfers  under 
the  operation  of  past  laws  will  be  found  of  record.  Pro- 
ceedings by  virtue  of  the  act  of  1841  require  but  slight 
notice,  the  rights  of  all  parties  thereunder  having  become 
permanently  established  by  the  effluxion  of  time.  Proceed- 
ings and  conveyances  under  the  act  of  1807  should  be  shown 
in  greater  detail,  3'et  even  here  only  a  brief  synopsis  seems 
necessary. 

§  10.  Jurisdiction  and  Practice.  By  the  bankrupt  act 
of  1807,'  the  District  Courts  of  the  United  States  have 
original  and  exclusive  jurisdiction  and  power  over  all  "acts, 
mattei^,  and  things  to  be  done  under  and  by  virtue  of  the 
l^ankruptcy,"  and  are  authorized  by  summary  proceedings, 
to  administer  all  the  relief  which  a  court  of  equity  could 
administer  under  the  like  circumstances  upon  regular  pro- 
ceedings.*   A  revisory  jurisdiction  is  further  conferred  upon 

'  Mowry  r.  Crocker,  6  Wis.  326.        Newman  v.    Fisher,   37  Md.  259; 
'  14  Stat,  at  Large,  520.  Voorliees  v.  Frisbie,  25  Mich.  476. 

*  Jilatter  of  Wallace,  Deady,  433; 


ASSIGNMENTS,    INSOLVENCY    AND    BANKRUPTCY.  333 

the  federal  circuit  courts,  but  all  initiate  proceedings  are 
coniined  to  the  district  courts,  wliich,  when  sitting  as  courts 
of  bankruptcy,  are  to  be  regarded  as  separate  courts,  exer- 
cising po\vei"s  and  a  jurisdiction  distinct  from  their  powers 
as  district  courts  as  originally  constituted.'  Such  courts 
may  exercise  extra-territorial  jurisdiction  in  collecting  the 
estate  and  adjusting  the  clai^ns  of  the  creditcn's  of  the  bank- 
rupt, but  in  all  mattei-s  of  controversy  touching  the  rights 
of  the  assignee  uiuler  the  assignment,  when  tlie  subjects  in 
dispute  are  of  a  local  nature,  the  rights  of  parties  can  only 
be  determined  by  actions  in  local  courts.' 

§  11.  Classification — Procedure.  Bankruptcy  is  either 
voluntary,  when  precipitated  by  the  debtor's  own  act;  or  in- 
voluntary, when  produced  by  the  action  of  the  creditors,  the 
effect  upon  the  property  of  the  banki-upt  being  the  same  in 
either  case.  In  both  instances,  under  the  law  of  1S<)7,  it 
was  initiated  by  the  filing  of  a  petition,  and  consummated 
by  adjudication  and  assignment.  When,  after  adjudication 
and  before  any  assignment  had  been  made,  a  composition 
was  effected  and  the  bankrupt  discharged,  there  seems  no 
good  reason  why  the  abstract  should  be  encuml)ered  by  de- 
tails which  are  immaterial  to  the  title,  ami  such  i>roceedings 
may  be  safely  omitted.' 

§  12.  Nature  and  Fiirect  of  Bankruptcy.  A  jkmsou  adju- 
dicated a  bankru])t  is  deemed  a  bankrupt  from  the  day  on 
whicli  he  files  his  ])etition,  and,  from  the  moment  the 
])etition  is  filed,  so  far  as  his  ]iroperty  is  concerned,  he  is 
considered  as  civilly  dead.  During  the  interval  existing  be- 
tween tlie  filing  of  the  ])etition  and  the  a|)p(»intment  of  the 
assignee,  a  con<liti()n  (jf  things  exists  not  unlike  that  befoi'e 
the  apjxjjntment  of  an  administrator  in  the  ease  of  a  pei-s<.n 

•  Norrw' Case,  1  Abb, (TJ.  S.)  rjli.       hou-cvcr.  to  Itriefly   :illii«l.-   to   tli.' 

*  Wbitri<lKey.Tayl<jr,  ftON.C.  21.i.      fllitij^of  ilu- petition  aiKl.liscliarKt'. 
*TbiH  iH  r»n  the  |»riri<-i|)l<' that  tins      as  the  hiiiilini|>t.  (hiring    tliis  jm>- 

matt^T   p.rKsi-H«i»(   no    nu»r<'     fon-fs  rioil,  lum   no  |Ht\vcr  of   disjioMition 

than    a  Katihlled  jndt^rnent,  which  over   liis   eirects;  tlu<  ad  judication 

i«  neither  a  hen    nor  a   cloud,  hut  Itciii;;  to  deprive  him  of  tlie  iM)wer, 

only  a  cloj;  when  placed  n|><)n  an  while  the  diHchargo  restontt  Bjinic. 
aliHtr.'u;t.     Many  exaniinerH  prefer, 


33rt  ABSTRACTS    OF   TITLE. 

dying  intestate,  no  one  being  authorized  to  dispose  of  or 
assign  his  assets.'  A  voluntary  bankru})t  is  intrusted  "vvitli 
the  care  of  his  estate  before  an  assignee  is  chosen,  as  a  sort 
of  trustee,  and  in  invohmtary  proceedings  a  warrant  issues 
to  the  U.  S.  marshal,  who,  as  the  messenger  of  the  court, 
takes  possession  provisionally  of  all  the  bankru])t's  property/ 
§  13.  Bankruptcy  Proceedings — How  ShoAvn.  As  in 
chancery  proceedings,  only  a  brief  outline  of  the  proced- 
ure of  the  bankruptcy  court  can  well  be  shown  in  the 
abstract,  Avhich  in  cases  of  this  nature  is  rather  an  index  than 
a  transcript.  Sufficient,  however,  should  be  given  to  show 
the  apparent  regularity  of  the  proceedings,  and  the  degree 
of  detail  may  be  regulated  by  the  wishes  of  the  client. 
After  confirmation,  a  sale  by  the  assignee  stands  in  the  same 
relative  position,  with  respect  to  irregularities,  etc.,  in 
anterior  proceedings,  as  other  sales  in  chancery,  and  such 
anterior  proceedings  require  no  greater  elaboration.  With 
such  changes  as  may  be  necessary  to  suit  the  exigencies  of 
particular  cases,  the  following  will  afford  a  sufficient 
example : 

TJ.  S.  District  Court, 
Northei'n  District  of  Illinois. 
In  the  matter  of  tJie  estate  )       Case  No.  IfiOO. 

of  And reio  Smith,         >      Petition  filed  Nov.  10,  ISG 8  J" 
Bankrupt.  )      Schedule  of    assets  and    lia- 

■  hihties  mentions,  [Jiere  set  out  so 
rn,uch  of  the  real  estate  described  as  is  covered  hy  the  cap- 
tion of  the  ahstroAit;  or,  if  not  mentioned,  say:  does  not  men- 
tion property  in  question.']  Adjudication  entered  Nov.  16, 
1868.*  Robert  E.  Jenkins  appointed  assignee  Nov.  16,  1868. 
Petition  of  said  assignee,  filed  Dec.  1,  1868,  praying  lea/ve 
to  sell  assets  of  said  estate  at  public  auction,  etc. 

'Johnson  v.  Geisriter,   26  Ark.  rolatos  to    the    commoncement  of 

44.  the  proceeding,  and  the  title  of  the 

•  In  re  Muller,  Deady,   513;  In  re  assignee  becomes  vested  as  of  that 

Ilarthill,  4  Bon.  448;  Williams  v,  date.     International  Bank  v.  Sher- 

Merritt,  103  Mass.  184;  In  re  Carow,  man,  101  U.  S.  403. 

41  How.  Pr.  (N.  Y.)  112.  ■•  In  case  there  should   hare  been 

'  An  assignment  in   bankruptcy  a  composition  and  subsequent   dis- 


ASSIGNMENTS,    INSOLVENCY    AND    BANKKUrTCY.  335 

Order  entered^  Dec.  2,  1S6S,  authorizing  said  assignee  to 
sell  assets  as  prayed  for  in  said  petition^  after  giving  three 
we-eJ^s''  puhlic  notice  li/ publication,  etc.,  and  ten  dat/s^  notice  by 
mail  to  creditors. 

Assignee's  report  of  sale,  with  proof  of  publication  and 
notice  of  sale  attached,  fiJed  February  1,  1SG9,  showing  sale 
of  [here  set  out  the  description  of  property  sold  if  covered  by 
the  search;  or,  if  only  one  piece  is  named  in  schedide,  or,  if 
all  the  property  named  in  schedule  is  sold  to  one  person,  say: 
the  premiifes  described  in  schedule  of  assets  and  above  set 
forthl  to  Alexayider  Hamilton  fo^^  $10,000. 

Assignee's  report  of  sale  approved  and  sale  confirmed  Feb- 
ruary 10,  1SG9. 

The  sul)::;o'|uent  proceed inixs,  relative  to  the  discharg-e  of 
tlie  bankruMt  are  immaterial,  as  he  has  now  been  divt'sted 
of  all  title  to  the  land  in  question;  but  should  the  examiner 
desire  to  add  a  symnietrical  close  to  his  synopsis  of  the 
action  of  the  bankruptcy  court,  he  may  add: 

Petition  for  discharge  filed  March  1,  ISGO. 
Register's  final  report  filed  March  10,  1869. 
Discharge  entered  and  issued  May  1,  1SG9. 

§  14.  The  Assignment.  The  synopsis  given  in  the  last 
section  is  taken  from  the  rolls  of  the  district  couit.  and 
shows  the  -ieneral  course  of  the  proceedings.  The  formal 
instrument,  however,  by  which  the  assignee  takes  the  legal 
title,  is  an  assignment  by  the  Register,  which  is  duly 
recorded  as  a  title  deed  in  the  registry  of  deeds  of  the 
county  wherein  the  land  is  situate,  and  in  the  abstract  may 
be  shown  us  follows : 

charpe,  tho  i.ot<-«  of  same  may,   in  sovoralh',  of  the  ortterinpnTifl  filin;; 

the  examiner  H  (hscrction,    be    en-  of    tlie    petitictn      for   roiniM)siliiiM 

tereil  iminediat<ly    fuliuwiiif^.     In-  meeting;;   tlio   l^•^^i.ster'H   report  of 

aiiinu(rh  aH  sueh   ijrfK-ee<lingH  hlied  coni|)o.silion,  and  decree  conllrminn 

no  li;iht  on  Dw  title  tliey   are  not  Bam**;  the  He^^ister's  rej>ort  of  com- 

imierted  in  the  form   alxjve   f^iven.  jiliance  and  linal  discharge. 
lliey  would  coubibt  of  tlie  datu8, 


336 


ABSTliACTS    OF   TITLE. 


Jlomcr  X.  Hihhard,  one  of 
the  Ucytders  in  Biink- 
rnpteij  of  the  Didr'tct 
Court  of  the  U.  S.  for 
tJie  Northern  District 
of  Illinois^ 
to 

liohei't    E.   Jenl'.infi^     as- 


Afinignment. 

Dated  Nov.  16,  1868. 

Dicorded  Nov.  17,1868. 

Bool:  GDl,p<i'je625. 

Conveys  and  assigns  all  the 
'  estate .^  real  and  personal,  of 
said  Andrew  Smith,  hanhrupjt, 
including    all    the  j^i^^pcrty,   of 


signee  of  Andrew  Smith,  i  'whatever  kind,  of  which  he  urns 
fiankrupt.  J  possessed,  or  in   v:>hich    he    was 

interested  or  entitled  to  have,  07i 

Nov.  10,  1868,  loith  all  his  deeds,  hooks  and  papers  relating 
thereto,. excepting  siich  property  as  is  exempted  from  the  oper- 
ation of  this  assignment  l>y  the  provisions  of  Sec.  501^5,  of 
title  61,  Bankruptcy,  of  the  Revised  Statutes  of  the  United 
States.^ 

In  trust,  for  the  uses  and  p>nr poses,  with  the  powers,  and 
sithject  to  the  conditions  and  limitations  set  forth  in 
said  act. 

This  prescTits  substantially  the  contents  of  the  assign- 
ment, and  conveys  all  the  information  necessary  to  be  shown 
in  the  abstract,  but  should  the  examiner  so  desire  he  may 
set  forth  the  instrument  in  greater  detail. 

§  15.  Assignee's  Deed.  In  order  to  present  this  synop- 
sis of  bankruptcy  proceedings  in  a  connected  manner,  and 
as  it  should  appear  in  the  abstract,  it  is  deemed  advisable  to 
give  the  assignee's  deed  in  this  place  rather  than  where  it 
more  properly  belongs,  in  the  chapter  devoted  to  official 
conveyances.      These    deeds,    like    other  conveyances   by 


'  It  should  be  remembered  that 
only  the  property  actually  owned 
by  the  bankrupt  passes  by  this  as- 
signment, and  hence  where  such 
bankrupt  possesses  the  legal  title 
only,  but  no  beneficial  intei'est,  the 
title  does  not  vest  in  the  assignee 
and  can  not  be  conveyed  by  him 
(Rhodes  v.  Blackiston,  106  Mass. 
334);  and  the  mere  fact  that  the  as- 
signee inventories  certain  land  as 


belonging  to  the  estate  of  the 
bankrupt,  and  sells  and  conveys 
same  under  order  of  court,  does 
not  operate  as  an  adjudication  that 
the  land  was  the  jjroperty  of  the 
bankrupt  at  tlie  time  of  the  filing 
of  the  petiti(;n,  but  only  that  wliat- 
ever  of  title  the  bankrupt  then  had 
is  conveyed  to  the  purchaser: 
Wilkins  v.  TourteUott,  28  Kan.  825. 


ASSIGNMENTS,    IXSOLTEXCY    AND    BAXKKUPTCT.  337 

trustees,  are  usually  very  long-  and  prolix,  and  considerable 
tliscrimiuation  must  be  exercised  in  preparing  the  abridg- 
ment, in  order  to  present  everything  that  can  shed  light  on 
the  transaction  and  yet  avoid  burdening  the  abstract  with 
unnecessary  particulars  or  useless  verbiage.  The  following 
form,  prepared  from  a  very  long  and  technical  deed,  will 
serve  to  explain  the  meaning  of  these  remarks  and  illustrate 
the  methods  described  : 

Rohert  E.  Jeyikins^  Assignee  ^       Assignee'' s  Deed.^ 


in  Banl'i'iiptei/  of  the  Es- 
tate and  Effects  of  And  re  m 
Smithy  Bankrujyt^ 
to 
Alexander  Hamilton. 


Dated  Fi<h.  10, 1S69. 

Recorded  Feb.  12,  1S69. 

Booh  100, page  200. 

Sets  forth,  that,  in  accord- 
ance with  the  provisions  of  the 
Revised  Statutes  of  the  United 
States,  Title  "  Bankruptcy/,"'  a  petition  was  fled  hi  the  District 
Court  rf  the  United  States  for  the  Northern  District  of  Illi- 
nois, on  Nov.  10,  1S68,  hy  said  Andreio  Smith,  and  on  Nov. 
16,  lSGS,8aid  Andrew  Smith  vjas  dulg  adjudged  and  declared 
h'inl'rupt:  and  on  Nov  16,  1S6S,  said  Robert  E.  Jenkins  was 
duly  appointed  assignee  of  the  estate  and  effects  of  said  bank- 
rupt by  IT.  N.  llibbard,  one  of  the  Registers  in  Bankruptcy  of 
said  Court,  which  said  appointment  was  thereafter  duly  ap- 
proved and  confirmed  by  said  Court,  and  on  Nov.  16,  ISOS, 
said  Register  conveyed  and  assigned  to  said  Jenkins,  as  such 
assignee,  all  the  estate,  real  and  pergonal,  of  said  bankrupt, 
inclvAing  all  the  property  of  whatsoever  kind,  of  which  said 
bankrupt  was  possessed,  or  in  which  lie  was  interested,  or 
which  he  was  erdiUed  to  have  on  Nov.  10,  ISGO  {excepting  onh/ 
such  property  as  is  excepted  by  the  oO.'iolh  section  of  said 
Revised  S(afufes). 

That  said  bankrupt,  Andrew  Smith,  appears  to  have  been, 

•  TluH  ifl  an  ftl)ri(l^m<'nt  f)f  a  diM-d  ami  will  ho  pxxl,    if  in  otlicr  rc- 

unilor  tin?  law  of  1H!»7.     UikKt  tlie  Bj)e<'t«  sunii  a-iit.  the  wiiiio  jus  a  ilit-d 

law  of  1H41   a   d<H<l  conUiininK  a  niiulc  hy  (ht*  haiiknipt  lM«f.»ii'  tlio 

copy  of  tlie  d<*<T<"ii  of  hankru|»t<-y  a<l  jii-hralioji:  Jvydcr  v.   liush,   103 

anrl    of    th«'    ap|><>iiitiii<nt    f>f    IIk?  HI.  y<iy. 
artHij^icf*'.   iif(.'<ih  no  otlief    recilala 
23 


338  ABSTRACTS   OF    TITLE. 

o)i  said  last  mentioned  date,  possessed  of  or  entitled  to  an  in- 
terest in  reed  estate  and  property  hereinafter  mentioned.  And 
said  assi'jnee  having  first  given  notice,  hy  ptddication  once  a 
\oeek,for  three  consecutive  loeeks,  p)ursuant  thereto,  on  Feb.  7, 
ISGO,  offered  for  sale,  and  sold  said  real  estate  and  property 
at  puMic  auction,  andut  said  sale,  second  party  was  the  high- 
est Vidder,  and  hecame  the  purchaser  thereof  for  $10,000.00; 
which  sale  was,  on  Feb.  10,  ISGO,  approved  and  confirmed  by 
said  Court,  and  said  Court  did,  on  the  day  and  year  last 
named,  order  and  direct  said  assignee  to  execute  and  deliver 
to  said  second  party  a  deed  for  the  real  estate  so  sold,  convey- 
ing tJte  same  to  him,  in  accordance  with  the  terms  of  said  sale. 

Now,  therefore,  in  consideration  of  the  premises,  and 
$10,000.00,  remises,  releases,  sells,  conveys  and  quitclaims,  all 
the  right,  title,  interest,  estate,  claim  and  demand  of  said 
bankrupt,  which  he  had  on  Nov.  10,  1868,  and  of  said  Robert 
E.  Jenkins,  as  assignee  aforesaid,  in  and  to  the  following  de- 
scribed real  estate,  to  wit:  {Ilere  set  out  the  description  of 
the  propeHy  conveyed,  employing  the  language  of  the  deed.'] 
with  all  the  improvements,  rights,  privileges  and  appurte- 
nances tftereto  belonging,  but  subject  to  all  unpaid  taxes  and 
tax  liens,  and  to  all  liens  and  incumbrances,  unless  expressly 
excepted,  released  or  discharged  by  the  orders  of  said  Court, 
concerning  said  sale,  and  subject  to  all  the  terms  and  condi- 
tions of  said  sale. 

Certificate  of  acknowledgment,  dated  Feb.  10,  18G0. 

The  title  conveyed  by  the  assignee  is  no  better  than  that 
held  by  the  bankrupt,  and  the  purchaser  takes  it  charged 
Avith  all  the  equities  to  which  it  Avas  subject  in  his  hands,'  and 
burdened  with  all  liens,  by  mortgage  or  judgment,  which 
existed  against  him  at  the  time  of  the  adjudication. 

•  Walker  v.  Miller,  11  Ala.  1007;  notice,  free  from  latent  equities,  etc. 
Stow  V.  Yarwood,  20  111.  497;  Har-  but  as  a  mere  volunteer,  standing 
din  V.  Osborne,  94  111.  571.  In  this  in  the  shoes  of  the  bankrupt,  as  re- 
case,  the  court  held  that  an  assignee  spects  the  title,  and  liaving  no 
in  bankruptcy  does  not  take  the  title  gieater  rights  in  that  regard  than 
to  the  property  of  the  bankrupt  the  bankrupt  himself  could  assert. 
as  an  innocent  purchaser  without  The  bankrupt  had,  prior  to  the  time 


ASSIGX^rEXTS,    INSOLVENCY    AND   BANKEUPTCT. 


§  16.  Dischar£:e  in  Eajikriiptcy.  The  effect  of  an  adju- 
dication in  bankruptcy  being  to  deprive  the  person  adjudged 
a  bankrupt  of  his  power  to  take  or  convey  property  while 
resting  under  such  sentence,  it  is  proper  that  his  restoration 
to  civil  rights  shouhl  also  bo  shown  whenever  the  abstract 
discloses  him  in  the  character  of  a  grantor  or  grantee  after 
such  adjudication.  This  may  be  accomplished  by  a  simple 
note  of  the  fact.  "Where  a  composition  has  been  effected, 
such  note  would  be  given  in  connection  with  a  brief  refer- 
ence to  the  petition  and  proceedings  in  the  bankruptc}'' 
court.  Where  the  debtor's  property  has  passed  from  him 
to  the  assignee,  and  the  subject  of  the  examination  consists 
of  property  in  which  such  bankrupt  has  acquired  an  interest 
since  the  date  of  the  assignment,  it  may  be  shown  as  an 
independent  circumstance,  its  legal  import  being  merely  to 
show  the  removal  of  disabilit}'';  thus, 


he  was  adjudged  a  bankrupt,  con- 
veyed land,  but  the  deed  reniauied 
unrecorded,  and  the  court  held, 
that  no  title  would  pass  to  the 
assignee  as  against  the  purcliaser 
holding  under  the  prior  unrecorded 
deed.  "  Supp<jse,  "  said  Walker, 
C.  J.,  "the  debts  had  been  paid 
without  the  sale  of  the  land,  does 
any  one  supjxjse  the  bank-iiii)t 
could  liave  held  it  against  his  for- 
mer grantee,  whether  or  not  his 
grantee  liad  recorded  his  deed? 
Where  the  purchaser  had  paid  liis 
money,  and  received  the  convey- 
ance, his  equiti^-s  are  surely  e<iiial 
to  that  of  other  crtMlitors.  His 
d<fe<l  operatM  Ui  convey  U)  him  the 
title,  and  the  creditors  hav«!  ad- 
vanced nothing  to  [inK-un-a  li<'ii  on 
the  land,  and  tlieai)iK)intm<'rit  only 
operated  aa  a  tran-sfer  of  wliulever 


interest  the  bankrupt  hold  for  the 
benefit  of  his  creditors."  But  the 
learned  judge  fuilher  observes : 
"  If,  however,  in  such  a  case  the 
assignee  were  to  sell  and  convey 
the  land  to  an  innocent  purcha.ser 
witliout  notice,  and  he  were  to 
place  his  deed  on  record  before 
that  of  the  prior  pinvhaser,  a  dif- 
ferent case  would  be  presented." 
In  the  ciise  of  Holbrook  r.  Dicken- 
son, 5(5  III.  4*JT,  where  the  ji.ssi;;nee 
had  sold  the  land  under  a  similar 
state  of  facts,  it  was  held  that  the 
prior  purchaser  could  not  set  up  or 
show  his  unrecorded  deed  to  defeat 
the  title  of  the  assignee's  grantee, 
luid  this  is  the  generally  received 
doctrine  resulting  from  the  ])\niu 
coiistructicjii  of  the  recording  acts. 
And  see  Hank  r.  Stone.  80  Ky.  lOS); 
Wiikins  v.  Tourtellott, :.'«  Kan.  285, 


340 


ABSTRACTS    OF   TITLE. 


In,  the  matter  of  the 
hanl'ruptcy 
of 
James  L.  Sherman. 


1)1  the  U.  S.  District  Covrt, 
Northern  District  of  Illinois. 
'       Case  No.  3,529.   _ 

Voluntary  Petition. 
^     Filed  December  19,  1877. 

Discharge  entered  and  is- 
sued to  said  Bankmipty  Febru- 
ary 28,  1879. 


CnAPTER  XIX. 

AGREEMENTS  FOR  CONYEYAKCE. 

g  1.  Land  contracts.  g  7.  Formal  parts. 

2.  Relation    of    parties   under  8.  Assignment  of  the  contract. 

land  contracts.  9.  Performance — SuflSciency  of 

3.  Effect  and  operation.  deed  and  title. 

4.  Nature  and  re»]uisites.  10.  Forfeited  contracts. 

5.  As    affected    by    recording  11.  Bond  for  deed. 

acts.  12.  Agreement   for  conveyance 

6.  Construction  of     land   con-  by  will. 

tracts. 

§  1.  Land  Contracts.  Land  contracts,  or  agreements 
to  deed,  are  of  frequent  occurrence  on  the  records,  and 
occasionally  bonds  for  the  same  purpose  will  be  fountl, 
though  these  latter  are  noAV  practicall}'  obsolete.  Sliould  the 
contract  be  executory  its  contents  should  be  set  forth  with 
considerable  minuteness,  particularly  such  parts  as  relate  to 
the  parties,  the  subject-matter,  and  the  conditions  of  convey- 
ance. If,  on  the  contrary,  the  contract  has  been  consum- 
mated by  deed,  a  passing  allusion  to  it,  as  part  of  the  chain  of 
title,  will  be  sufficient.  Where  the  subsequent  deeds  do  not 
show  a  substantial  compliance,  a  full  synopsis  may  become 
material,  although  the  contract  has  been  executed,  and  the 
examiner  shoultl,  as  a  precautionary  measure,  first  satisfy 
him.self  on  this  point  before  abstracting  the  instrument. 
In  executed  contracts,  however,  this  is  not  of  vital  impor- 
tance, for  acceptance  of  a  deed  ordinarily  merges  any  i)ro- 
visions  of  the  contract  of  sale  which  are  dilferent  from  tlie 
dw.'d.' 

'Davenport  r.  Wliifilf-r,  40  Iowa,  jicttolargiMnialifii-ation.  Tli<'a<(- 
287;  Built'.  Willard,  5J  B.irb.  Oil;  ualc<»iitra<t  iw  shown  by  tiu' a^n-t'- 
Jonesr.  Wood,  H)  I'a.  S.j.  Tbiw  is  mcnt,  will  stilliM-coiiip<tfiit,  wli«rf 
the  accepted  doctrine,  yet  iti»  Hub-       tbroiigli  fraud,  inadverlciui-or  iiiih- 

(a-ll) 


312  ABSTRACTS    OF   TITLE. 

§  2.    Relation  of  rarties  Under  Land  Contracts.    The 

relation  between  the  parties  to  an  ordinary  contract  for  the 
conveyance  of  hind  upon  the  future  payment  of  the  purchase 
money,  is  analogous  to  that  of  ccjuitable  mortgagor  and 
mortgagee,  the  vendor  holding  the  legal  title  as  security 
for  the  unjiaid  purchase  money,  which  security  is  essentially 
a  mortgage  interest.  The  vendee  has  an  e(]uity  of  redemp- 
tion, and  the  vendor  a  corrt'l  ti  e  right  of  foreclosure  upon 
default  in  the  payments.'  In  this,  as  in  othci'  cases,  the 
mortgage  is  the  incident,  the  debt  the  princi])al,  and  the 
vendor  has  no  further  interest  except  to  the  extent  of  the 
security  the  mortgage  afToi-ds  for  his  debt.' 

§  3.  Eti'ect  and  Operation  ol'tlie  Contract.  The  effect 
of  a  valid  contract  for  the  conveyance  of  land,  is  to  vest  in 
the  vendee  the  equitable  estate  in  the  land,  leaving  the  legal 
title  in  the  vendor  as  a  mere  lien  or  security  for  the  unpaid 
purchase  money."  The  vendor,  in  such  case,  is  simply  a 
trustee  having  an  interest  in  the  proceeds  but  not  in  the 
land,  and  this  interest,  upon  his  decease,  would  pass  to  his 
personal  representatives  and  not  to  his  heirs.  The  heirs 
would,  it  is  true,  take  the  legal  title  by  descent,  but  only  as 

take,  a  different  deed  has  been  de-  Sackett,  U.  S.  Sup.  Ct.  (1883).    It 

livered:  Snell  v.  Insurance  Co.,  98  will  thus  be  seen  that  in  case  of 

U.  S.  85,  and  cases  cited.     Where  discrepancy    or     repugnancy    the 

there  has  been,  by  mutual  mistake,  agreement  should  be  fully  abstract- 

a  failure  to  embody  in  the  deed  the  ed  or  at    least    sufficient    thereof 

actual  agreemeiit  of  the  parties  as  given  with  reasonable  context  to 

evidenced    by    the    prior    written  show  the  repugnancy, 

agreement,  and  the  meaning  of  the  'Church  v.  Smith,  29  Wis.  492. 

prior  agreement  is  clear,  and  noth-  Buttons    Sclu-oyer,   5   Wis.    598; 

ing    has    occurred    between    the  King  t'.    Ruckman,    21  N.   J.  Eq. 

parties  after  it  was  signed  and  de-  599;   Baldwin  v.    Pool,   74  111.  97; 

livered  to  vary  its  terms,  except  Fitzhugh    v.  Maxwell,     34  Mich, 

the  mere  fact  of  the  delivery  of  the  138;  Dew  v.   Dellinger,   75  N.  C. 

deed,  and  the  deed  not  effecting  300. 

what  both  parties  intended  by  the  '^  Strickland    v.    Kirk,    51   Miss, 

actxial  conti"act  which    they  had  795. 

made,  a  court  of  equity  will  inter-  ^  Reed    v.   Lukens,    44  Pa.    200; 

fere  and  reform  the  deed  so  given  Gary  v.  Whitney,  48  Me.  516;  Mil- 

in  accordance  with  the    original  ler  v.  Corey,  15  Iowa,  166. 
and  manifest  intention :   Elliot  v. 


AGKEEME2sTS    FOR   CONVEYANCE.  343 

it  was  vested  in  the  ancestor,  which  was  as  a  mere  security  for 
the  debt.  The  debt  being  due  to  the  administrators  or  exec- 
utors of  the  vendor,  and  as  the  lien  is  considered  to  be  hekl 
by  the  heirs  in  trust,  and  simply  as  a  pledge  or  security  for 
its  payment,  on  payment  of  the  debt  the  heirs  would  be 
compellable  in  equity  to  execute  the  trust  by  the  convey- 
ance of  the  title,  while  the  purchase  money  would  go  to  the 
personal  representatives.'  The  equity  is  a  proper  subject 
of  devise  by  the  vendee  and  will  descend  to  his  heirs  tlie 
same  as  realty,  and  in  them  is  vested  the  equity  of  re- 
demption.' 

§  4.  Nature  and  Roquisitos.  The  statute  of  frauds, 
substantially  re-enacted  in  all  the  States,  provides  that  no 
action  shall  be  brought  to  charge  any  person  upon  any  con- 
tract for  the  sale  of  lands,  unless  such  contract  or  some 
note  or  memorandum  thereof  shall  be  in  writiuir,  and 
signed  by  the  party  to  be  charged  therewith,  or  some  other 
jiei-son  thereunto  by  him  lawfully  authorized,  and  where 
there  is  no  exception  contained  in  the  statute  the  courts 
will  not  create  any.'  No  special  form  is  required  as  an 
evidence  of  such  contract,  and  courts  seem  inclined  to  allow 
a  wide  latitude  in  this  particular.*  The  statute  allows  the 
memorandum  to  be  signed  by  the  vendor  or  his  agent,  yet 
it  seems  that  if  made  by  an  agent  it  should  still  be  in  the 
principal's  name.'  If  the  terms  of  the  contract,  the  con- 
sideration, the  subject-matter  of  the  sale,  etc.,  are  stated 
with  reasonable  certainty,  the  memorandum  is  sulKcient. 

Form  is  not  important,  nor  need  it  be  under  seal,"  the 
one  indispensable  recpiisite  being,  tliat  it  be  in  writing  aiul 

•  Geranrs  Tit.  to  Real  Est.  17?;  iiia.li-.  tlio  latter  a  sale  to  he  matlo. 
JoliriKon  u.  Corliett,  11   Paige,  265;  '  Broome  r.  Monck,  10  Ws.  (Eng. 

Moore  v.   Burrows,  34  Barb.  173.  Cli.)  r)l)7. 

Tlje  agreement  to  deed,  above  re-  'Hairstoii  i'.  Jaii(li>ii,    Vi  Mi.ss. 

f erred  to,   is  very  dilTerent  from  380. 

the  contract  of  piirehase   or  eon-  *  Bemi.s  v.  Be<'k('r.  1  K;m.  U'Jti. 

ditionH  of  sale,  under  the  EngUhh  •  Mor^iian  ?*.  Bergen,  3  Neb.  201). 

BVHtem    of    conveyaii'ing.     The  '.Moss   v.    Atkinson.   -U    ('mI.    .'i; 

former  contomplatew  a  Bale  already  Rvittenberg  r.  Main,  17  fal.  2i;J. 


341  ABSTRACTS   OF    TITLE. 

sig-no(l  by  the  vendor  or  his  agent;'  and  the  power  to  the 
agent,  unless  provided  otherwise  by  statute,  may  be  given 
orally."  It  is,  however,  a  familiar  rule  in  this  branch  of  the 
law,  that  a  contract  which  equity  will  speciiically  enforce, 
must  be  certain  in  its  terms,  and  the  certainty  required  has 
reference  both  to  the  description  of  the  pro])erty  and  the 
estate  to  be  conveyed.  Uncertainty  as  to  either,  not  cap- 
able of  being  removed  by  extrinsic  evidence,  will  invalidate 
the  contract.'  Less  particularity  is  required,  however,  than 
in  case  of  actual  conveyances  of  the  same  land,  and  as  a 
rule,  any  description  of  the  property  will  be  sufllcient  pro- 
vided it  be  such  as  to  enable  a  survc^^or  to  locate  the  land.* 
Every  contract  which  gives  no  means  of  Identifying  the 
boundaries  of  the  land  sold,'  which  furnishes  no  informa- 
tion regarding  the  terms  of  the  contract,'  or  which  by 
faulty  or  imperfect  description  renders  the  location  of  the 
l)roperty  uncertain,'  will  be  incapable  of  spccilic  enforce- 
ment. 

§  5.  As  Affected  l)y  tlic  Recording  Acts.  Interests  in 
land  acquired  through  contracts  of  purchase  fall  within 
the  protection  of  the  recording  acts.  Therefore,  although 
another  may  be  interested  as  a  part  owner  of  land  sold  by 
contract,  if  the  record  fails  to  show  that  interest,  and 
shows  the  entire  title  in  the  vendor,  the  purchaser  from  the 
a)i]iarent  owner  of  record,  without  notice  of  the  real  facts, 
will  hold  the  title,  and  so  of  his  assignee.' 

§  6.  Construction  of  Land  Contracts.  A  contract  for 
the  sale  of  land  is,  for  most  purposes,  regarded  in  equity  as 

'  Hayclock  v.  Stow,  40  N.  Y.  363.  tablish  siioh  a  contract  need  not 

'  Ruttenberg     v.   Main,   47  Cal.  describe  either  the  consideration  or 

213;  McWborter  v.  McMahan,    10  the  lands  which  are  the  subject  of 

Paige,  3S6.  the  sale,  otherwise  than  by  a  refer- 

*Wholant'.  Sullivan,  102  Mass.  ence  therein  to  some  extrinsic  fact 

204;  Peters  v.  Phillips,  19  Tex.   74.  or  instrument  by  means  of  which 

■•Wliite  v.  Hermann,  51  111.  243.  theconsi<loration  and  the  land  can 

*  AVlielan  v.  Sullivan,  102  Mass.  be  known  with  sufficient  certainty: 
204:  Holmes  v.  Evans,  48 Miss.  247.  'VVasliburn  v.  Fletcher,  42  Wis.  152. 

*  !Mc(iuire  v.  Stevens,  42  Miss.  '  Gigos  v.  Cochran,  54  Ind.  593. 
724.  The  writing  relied  upon  to  es-  *  Allen  v.  "Woodi'ulf ,  90  111.  11. 


AGREEMENTS  FOR  COXVEYAXCE.  345 

if  already  specifically  executed.'  When  consisting  of  t\vo  in- 
struments thev  will  be  construed  tocrether  and  effect  mven 
as  of  one  entire  instrument.''  Time,  unless  specifically  made 
of  the  essence  of  the  contract,  Avill  not  be  construed  to  the 
disadvantage  of  the  vendee,  and  a  contract  which  uses 
the  ordinary  terras  to  express  the  time  for  the  payment  of 
the  purchase  money,  without  any  express  intention  that 
such  time  is  material,  does  not  make  it  so.' 

§  7.  Formal  Parts.  The  examiner  will  note  the  usual 
incidents  of  dates,  parties,  property,  etc.,  as  in  other  instru- 
ments, and  in  addition,  the  methods  of  transfer  and  conditions 
and  stipulations  annexed  to  the  contract,  if  an3\  Though  or- 
dinarily executed  by  both  parties,  this  is  not  arecpiisitc,  and 
an  executory  contract  is  valid  and  binding  and  can  be  as 
effectivel}'  enforced  by  the  vendee,  if  signed  by  the  ven- 
dor alone.*  It  is  advisable,  however,  particularly  where 
the  contract  contains  mutual  covenants  or  stipulations,  to 
note  a  divergency  in  this  respect.  The  following  is  sub- 
mitted as  a  synopsis  of  the  salient  features  of  an  ordinary 
executorv  contract : ' 


Alfred  Bur  well  J 

to  {or,  ivit/i) 
Charlex  Dobhson. 


Agi'rrmcnt  to  Convey  [or,  Lmul 
Contract.'] 
Dated  March  7,  ISSS. 
Recorded  March  3, 1SS3. 
Bool'  210,  jmge  590. 
JFlrst  party,  on.  payment   of  SoOO.OO,  agrees  to   convey  to 
second  party  hy  good  and  svjjicient  warranty  deed,  the  fol- 
hncing  demrihed  premises  sititated  in  the  town   <f  Mount 
Pleasant,  Racine  Coxinty,   W'tH.,  described  as  [here  set  out  the 
descriptiori]  free  from  all   liens   and    incumhrances,  except 
[here  set  out  incumhrance  recitals,  if  any.'] 

Serond  2>firty,  in  con xi deration  (f  the  foregoing,  agrees  to 
'pay  said  siirn  of  $500.00  [in  man  iter  following,  to  wit,  etc.,' 
st<Lte  the  terms  hriejly]. 

'  King  V.  Riu-kman,  21  N.  J.  r.<|.  »  Rood  r.  Jonos.  «  Wis.  802. 

JSyO.  *  ViLSHiiult  V.  KdwartlH.   43   Ciil. 

»  Bornnn  v.   Grwn,    1  Dmr  (N-  4r»H;  Ewius  v.  Uoitlon,  49  N.    II. 

Y.;,  382.              .  4Jt. 


346  ABSTRACTS    OF   TITLE. 

Time  to  he  the  verij  essence  of  the  contract. 

Further  tnutuallij  agreed  that  said  second  party  shall  have 
no  right  to  the  possession  of  said  premises  as  purchaser,  until 
after  full  payment  of p>urchase  money,  and  that  he  takes  same 
as  tenant  from  said  first  party  until  the  last  payment  has 
been  made. 

Executed  l>y  hoth parties  and  acl'nowledyed  ly  them  Jfarch 
J,  ISS3. 

§  8.  Assignment  of  the  Contract.  In  the  assignment 
of  an  executory  conti-act  for  the  sale  of  hind,  there  is  no 
implied  covenant, on  the  part  of  the  assignor,of  title  to  the 
land  in  the  vendor;  all  that  can  be  implied  is  a  Avarrant y 
that  the  assignor  owned  the  contract  and  had  the  right 
to  assign  it,  and  that  the  signatures  thereto  are  genuine.' 
Such  assignments  are  usually  very  brief  and  informal,  and 
consist  of  a  bare  recital  of  the  fact  of  assignment.  "Whether 
appended  to  the  original  or  made  by  a  separate  instrument, 
they  should  be  attended  by  the  same  solemnities  relative  to 
execution,  etc.,  as  Avere  necessary  in  case  of  the  original,  and 
shown  in  the  abstract  as  a  separate  link  in  the  chain.  The 
effect  of  such  an  assignment  is  to  convey  to  the  assignee  all 
the  interest  of  the  assignor  therein,  and  it  entitles  him  to 
demand  and  receive  a  conveyance  from  the  vendor  or  his 
heirs  upon  payment  of  the  purchase  money  due  thereon. 
lie  takes  it  subject  to  all  the  equities  existing  against  his 
assignor,  and  is  entitled  to  all  the  beneficial  incidents.^  The 
delivery  of  a  contract  for  the  purchase  of  land  by  the 
purchaser  to  one  to  indemnify  him  against  loss  by  becom- 
ing a  guarantor  for  the  purchaser,  without  any  written 
assignment  thereof,  constitutes  an  equitable  mortgage,  and 
a  subsequent  written  assignment  to  another  who  has  no 
interest  in  the  same,  and  Avhere  no  words  of  conveyance 
are  used,  would  be  inoperative.'     A  written  assignment  of 

'Thomas    v.   Bartow,  48  N.  Y.  Parmly  r.  Buckley,  103  111.  115. 

193.  3  Allen  v.  Woodruff,  96  111.  1 1 :  and 

« Tompkins  v.    Seely,    29    Barb.  see  Storj^  Eq.  Jur.  §  1020;  2  Wash. 

212;  Cromwell  r.  Fire  Ins.    Co.,  44  Real     Prop.     82;     Mandeville    v. 

N.    Y.    42;    Gerard's    Titles,    475;  Welch,  5  Wheat.  277. 
Reeves  v.  Kimball,   40  N.  Y.  299; 


AGREEMENTS  FOR  CONVEYANCE.  347 

a  dfied  or  contract  for  the  conveyance  of  land  is  not  neces- 
sary to  the  creation  of  an  equitable  mortgage,  and  the  only 
effect  of  such  written  assignment  is,  that  when  the  instrument 
and  assignment  are  recorded,  they  Avill  afford  constructive 
notice  of  the  mortgagee's  rights,  and  also  be  evidence  of 
the  fact  of  assignment  in  case  of  a  dispute.'  The  doctrine 
of  equitable  mortgages  by  deposit  of  title  deeds  does  not  at 
present  meet  with  much  favor  in  this  country,  however, 
and  strict  proof  of  notice  is  required  from  the  equitable 
mortgagee  to  bar  the  rights  of  subsequent  jiurchasers  or 
incumbrancers,*  while  in  several  States  the  doctrine  does 
not  prevail  at  all.' 

§  9.  Performance — Sufficiency  of  Deed  and  Title.  A 
familiar  form  of  expression,  used  by  conveyancers  in  draft- 
ing instruments  of  the  character  under  consideration,  in  rela- 
tion to  the  deed  to  be  given  is, "  good  and  sufficient,"  though 
not  infrequently  the  contract  expressly  calls  for  a  warranty 
deed.  The  term  "  good  and  sufficient  deed,"  etc.,  has  been 
the  subject  of  much  litigation  and  productive  of  a  large 
amount  of  judicial  reasoning,  both  as  regards  the  form  of 
the  instrument  and  the  title  conveyed  thereby.  In  this,  as 
in  most  other  much  litigated  questions,  a  complete  harmony 
of  opinion  has  not  prevailed,  but  it  would  seem  to  be  the 
preponderating  doctrine,  that  a  covenant  to  give  a  good  and 
sufficient  conveyance  of  land  is  satisfied  by  a  quit-claim 
deed,*  yet  with  respect  to  the  title,  such  a  conveyance  can 
only  be  i)erformed   by  a   deed  which   conveys   tlio   entire 

'Chase  v.  Peck,   21   N.    Y.    584;  339;  contra.  Watkins  v.  Rogers,  21 

Jarvis    v.   Dutcher,    16  Wis.   307;  Ark.  298.    niatiuu-tiisliavoniadca 

Allen  V.  "WoodnilF,  9G  111.  11;   Hull  written  agreement  for  a  sale,  with- 

V.  McDuff,  24  Me.  311;   Mounce  v.  out  jtroviding  fur  any   warranty, 

Beyen*,  10  Ga.  409.  iji(licati«  that  they  diil  nut  intend 

»I3icknell  v.  Bicknell,  34  Vt.  498;  there  should  Ik*  any  warranf  ,•;  and 

Story  Iv|.  Jur.  ^  1030.  if  the  «'onvi'y]uic(«  made  is  only  of 

»Hower8   V.    OvhUt.   8    Pa.    239;  the  riKlit,  till.- and   int. -rest  of  tlie 

Van  Mfter  v.  M<Faddcn,  8  H.  Mun.  vcnddr,  he  ran  nut  he  held  liable  for 

(Ky.)  435;  Strauss'  ApiMal,  49   I'a.  d<fj'<-trt    of    title,    except    on   the 

St.  358.  gruund  of   fraud  or  <'un(M>almi'tit: 

•Kyle  V.  Kavanagh,   103    Mass.  Julmtilun  v.  .M.  nd. uliall,  9  \V,  Va. 

Sr,(i;  Thayer  r.  Torn-y,  37  N.  J.  L.  lU'. 


34:8  ABSTRACTS   OF   TITLK. 

estate,'  and  vests  in  the  purcliascr  an  indefeasible  title/  A 
contract  to  execute  a  good  and  siifRcient  warranty  deed 
entitles  the  purchaser  to  a  warranty  deed  of  the  land  free 
from  all  incumbrances.'  In  every  contract  for  the  sale  of 
lands,  whatever  may  be  the  language  in  which  it  is  couched, 
there  is  an  im])]ied  undertaking  to  make  a  good  title,  unless 
such  an  obligation  is  expressly  excluded  by  the  terms  of 
the  agreement,"  and  in  the  absence  of  any  stipulation  as  to 
the  kind  of  conveyance,  the  presumption  is  that  the  vendor 
undertook  to  make  such  a  conveyance  as  will  render  the  sale 
effectual/  Special  attention  is  called  to  this  matter  at  this 
time,  from  the  fact  that  it  is  at  this  period  of  the  transaction 
than  an  attorney  is  usually  called  to  pass  upon  the  merits  of 
the  proffered  title.  "Whatever  be  the  medium  of  transfer,  a 
searching  investigation  should  be  given  to  the  title,  which, 
if  perfect  in  the  person  proposing  same,  renders  the  vehicle 
of  conveyance  of  minor  importance;  but  an  offer  to  make  a 
cjuit-claim  deed,  which  conveys  only  the  vendor's  interest, 
is  not  a  compliance  with  an  agreement  to  make  title  in  a 
case  where  the  chain  of  title  upon  the  public  records  is 
defective  or  broken,  or  the  land  is  burdened  witli  liens  and 
incumbrances."  In  executory  contracts  the  purchaser  is 
never  l)ound  to  accept  a  doubtful  title.'  Whenever  the  con- 
tract calls  for  a  specific  title  or  method  of  conveyance,  the 
vendee  must  convey  as  specified;*  thus,  where  a  purchaser 
has  contracted  for  a  good  title  of  record,  he  can  not  be  com- 
pelled to  take  a  title  depending  upon  adverse  possession 
under  the  statute  of  limitations,  although  it  may  be  per- 

'  Taft  V.  Kessel,  16  Wis.  273,  consult  Fitch  v.  Willard,  73  111.  92. 

« Delevan  v,  Duncan,  49  N.  Y.  485;  « Holland  v.  Holnies,  14  Fla.  300. 

Davis  V.  Henderson,  17  Wis.  105;  'Delevan  v.   Duncan,   49  N.  Y. 

Parlcer  v.  Parmelee,  20  Jolui.  130.  485;  Roberts  v.  Bassett,  105  Mass. 

s  Davidson  v.  Van  Pelt,  15  Wis.  407. 

341;  Burwellr.  Jackson,  5  Sold.  536.  *  Scott    v.    Simpson,    11    Heisk. 

■•Holland  v.  Holmes,  14  Fla.  390;  (Tenn.)  310. 

Hill  V.   Ressegien,    17    Bai-b.    162.  'Delevan  v.  Dimcan,  4  N.  Y.  485: 

Compare,  Johnston  v.  Mendenhall,  Tomlin  v.  MCliord,  5  Mai'sh.  (Ky.) 

9W.  Va.    112.  138. 

*  Hoffman  v.  Felt,  39  Cal.  109;  but 


A.GREEMEXTS    FOR    CONVEYANCE.  349 

fectly  good.'  But  where  the  vendor  of  land  assumes  no 
responsibility  as  to  his  title,  and  is  to  make  only  a  quit- 
claim or  special  warranty  deed,  but  is  to  furnish  a  satisfac- 
tory abstract  of  title,  the  purchaser,  for  a  reasonable  objec- 
tion to  the  title,  may  elect  whether  he  will  accept  a  con- 
ve3'ance  or  rescind  the  sale,  provided  same  is  made  with  no 
unnecessary  delay."  If  he  elects  to  take  it  under  a  unilateral 
contract,  any  delay  on  his  part  will  be  regarded  Avith 
especial  strictness,  the  fact  of  objection  in  such  case  not 
justifying  great  delay  in  performance,  and  it  has  been  held, 
under  similar  circumstances,  that  if  other  written  evidences 
furnished  in  connection  with  the  abstract,  show  a  good  title, 
tliis  will  be  sulKcient,  although  the  abstract  of  itself  does 
not.' 

§10.  Forfeited  Contracts.  Agreements  for  conveyance 
are  mainly  resorted  to  by  two  classes ;  the  one,  where,  by 
reason  of  financial  inability  no  immediate  consummation  of 
the  contract  of  sale  can  be  effected;  the  other,  where  j)ar- 
ties  desire  to  control  the  disposition  of  property  for  a  limited 
time  while  awaiting  other  developments.  In  each  case  for- 
feitures often  occur,  sometimes  evidenced  by  foreclosure  ])l'o- 
ceedings,  but  more  frequently  by  au  express  or  implied 
declaration  of  forfeiture. 

^[uch  stress  is  often  placed  by  counsel  upon  tlie  fact  of 
an  unfullilled  contract  of  sale  appearing  in  the  title,  and 
objections  of  a  serious  nature  are  fretjuciitly  founded  upon 
them,  yet,  as  a  rule,  they  are  formidable  only  in  apjtearance. 
Where  a  contract  for  the  sale  of  land  jnovides  that  if  tlio 
])urchaser  fails  to  ])erform  any  of  his  C(jvenants  the  vendor 
or  his  assigns  shall  have  tlie  right  to  declare  the  contract 
null  and  void,  a  subsequent  sale  by  such  vendor,  to  another 
party,  for  a  valuable  consideration,  is,  in  elfect,  a  declara- 
tion of  forfeiture  of  the  j)iirehasers'  contract. 

Sul)sequent  purchasers  of  huul,  in  the  absence  of  express 
notice  of  latent  equities  in  another  than  their  grantors,  can 

'  I':iK.«  r.  CJn'i-ly.  Tl  III.  1<)0.  »  NW-ldi  v.  DiiiUm,  7U  HI.  105. 

•Fitch  V.  WiUunl,  7:{  111.  W. 


350  ABSTRACTS    OF    TITLE. 

only  bo  afTccted  by  such  legal  consequences  as  may  be  fairly 
drawn  from  the  record  itself;  and  when  such  record  shows 
that  the  claim  of  a  prior  purchaser  has  been  cut  off  and 
defeated  by  a  sale  or  foreclosure,  or  by  a  forfeiture  of  his 
contract,  or  the  contract  of  his  vendor,  such  subsequent 
purchasers  will  have  a  right  to  rely  on  what  is  thus  dis- 
closed.' 

§11.  Bond  for  a  Deed.  Bonds  for  the  conveyance  of  land 
or  interests  therein,  though  formerly  much  in  vogue,  have 
now  fallen  into  disuse,  and  when  shown  are  usually  in  the 
earlier  links  of  the  chain.  As  in  the  case  of  land  contracts, 
when  followed  by  deed,  only  a  brief  notice  is  required,  while 
if  the  condition  remains  unfulfilled  a  greater  degree  of  detail 
is  necessary.  The  usual  formal  requisites  of  this  class  of 
obligations  are  equally  necessary  to  bonds  for  title,  and  in 
addition,  as  it  provides  for  a  transfer  of  land,  the  essentials 
necessary  to  entitle  it  to  record  and  to  afford  constructive 
notice,  as  acknowledgment  a^nd  the  like ;  an  example  is  here 
given : 


James  Thompson 

to 
Thomas  Wilson. 


Bond  for  Deed. 
Dated  Juhj  1,  ISS'a. 
Recorded  Jidy  3,  1SS3. 
Vol.  ''  B'' of  Deeds,  page  S62. 
Li  the  penalty  of  $1,000.00. 

Conditioned  for  the  conveyance,  by  ^^  good  and  sufficient'''' 
deed,  of  land  in  Kenosha  County,  Wis.,  described  as  the  south 
haf  of  tlie  southeast  quarter  of  Section  ten,  Tovjn  one  north. 
Range  twentij-three,  east  of  the  Ji-th  principal  meridian^  on 
imyment  of  $500.00. 

Acknowledged  July  1,  ISS^.. 

Special  provisions,  if  material,  should  be  shown  as  they 
occur.  A  bond  to  convey  land  upon  ])ayment  of  the  stipu- 
lated price  is  evidence  of  a  mutual  agreement  of  the  obligee 
to  purchase  and  of  the  obligor  to  sell.  The  agreement  of  one 
party  is  a  consideration  for  that  of  the  other,  and  it  is  imma- 

'See  Warren  v.  Ricliiiiond,  53  111.  54;  "Warder  v.  Cornell,  105  111.  109. 


AGREEMENTS  FOR  CONVEYANCE.  351 

terial  that  the  obligation  of  the  one  party  is  secured  b3"boiui, 
and  that  of  the  other  is  not  thus  secured.' 

§  12.  A2:reements  for  Conveyances  by  AVill.  Agree- 
ments to  convey  need  not  provide  for  the  issuance  of  a  deed, 
for  an  agreement  to  devise  the  property  by  will  may  be  sub- 
jected to  a  specific  performance  by  a  court  of  equity  after 
the  death  of  the  granting  party  with  the  same  effect  as  a  con- 
tract to  convey  while  living.  It  has  been  said  by  ^Villiam- 
son,  C:  "  There  can  be  no  doubt  but  that  a  person  may  make 
a  A'alid  agreement,  binding  himself  legally  to  make  a  particu- 
lar disposition  of  his  property  by  last  will  and  testament 
The  law  permits  a  man  to  dispose  of  his  own  property  at  his 
pleasure ;  and  no  good  reason  can  be  assigned  Avhy  he  may 
not  make  a  legal  agreement  to  dispose  of  his  property  to  a 
particular  individual,  or  for  a  particular  purpose,  as  well  by 
will  as  by  conveyance,  to  be  made  at  some  si)ocified  future 
period,  or  upon  the  happening  of  some  specified  future  event. 
It  may  be  unwise  for  a  man  to  embarrass  himself  as  to  the 
final  disposition  of  his  property,  but  he  is  the  disposer  by  law 
of  his  fortune,  and  the  sole  and  best  judge  as  to  the  manner 
and  time  of  disposing  of  it,  A  court  of  equity  will  decree 
the  specific  perfonnance  of  such  an  agreement  upon  the  recog- 
nized principles  by  which  it  is  governed  in  the  exercise  of 
this  branch  of  its  jurisdiction." " 

'  Ewins  V.  Gordon,  49  N.  H.  444.  '  Jolinson  r.  IIuMmII,  5  Am.  Law 

llie  rule  is  the  same   in  ca.se  of  Reg.  177;  Stephens  v.  Keynolds,  6 

agreements   to  convey  signed  l)y  N.    Y.  458;  Wriglit  i'.  Tinsley,  'M 

vend(jr  only.     See  Vassault  u.   Ed-  Miss.  3y9;  Muudort'i'.IIo\vard,4Md. 

wards,  43  Cal.  458.  459. 


CHAPTER  XX. 

LEASES, 

§  1.     Nahii'e  and  requisites.  §  4.     Ini^ilicd  covonniits. 

2.  Formal  piu'ts.  «        5.     Agricnltvirul  lands. 

3.  Covenants  and  conditions.  6.     Assignnient  of  lease. 

§  1.  Nature  and  Rc(iuisites.  A  lease  is  a  contract  for  the 
possession  and  profits  of  land  and  tenements  on  the  one  side, 
and  a  recompense  of  rent  or  other  income  on  the  other;  orit 
is  a  conveyance  to  a  person  for  life  or  years,  or  at  will,  in  con- 
sideration of  such  rent.'  Tlie  estate  or  interest  conveyed  by 
a  lease  is  personal  in  its  nature,  whatever  may  be  the  duration 
of  the  term,  and  falling  below  the  character  and  dignity  of  a 
freehold,  it  is  regarded  as  a  chattel  interest,  and  is  governed 
and  descendible  in  the  same  manner."  When  made  in  writing, 
as  it  must  be  if  the  term  exceeds  one  j^ear  in  duration,  a  lease 
is  usually  mutually  signed  in  duplicate  and  interchangeably 
delivered  by  the  parties,^  but  if  only  signed  by  the  lessor,  its 
acceptance  by  the  lessee  raises  a  promise  on  his  part  to  pay 
the  rent  reserved  and  faithfully  observe  all  the  stipulations 
and  conditions  which  the  lease  shows  were  to  be  observed  or 
performed  b}^  him."  Whether  an  instrument  shall  be  consid- 
ered a  lease,  or  only  an  agreement  for  one,  depends  on  the  in- 
tention of  the  parties,  as  collected  from  the  Avhole  instrument, 
and  the  law  will  rather  do  violence  to  the  Avords  than  break 
through  the  intent  of  the  parties  by  construing  such  an  in- 
strument as  a  lease,  when  the  intent  was  manifestly  other- 

'  Jackson  v.  Harsen,  7  Cow.  32G;  to  the  ]and\oTd  the  counterpart,  hut 

2  Bl.  Com.  217.  for  all  practical  pm-poses  both  are 

'2  Kent  Com.  342;  Goodwin  u.  regarded    as    original:    Dudley  v. 

Goodwin.  33  Conn.  314.  Sumner,  5  ^lass.  438;  Taylor's  Land- 

^The  copy  delivered  to  the  tenant  lord  and  Tenant,  106  (6th  Ed.). 
is  called  the  origmal  lease,  the  one  '•Pike  v.  Brown,  7  Cush.  134. 

(352) 


LEASES.  353 

■wise.'  The  projier  definition  of  a  lease  embraces  only  such  in- 
struments of  conveyance  as  transfer  to  the  lessee  a  less  estate 
than  is  possessed  by  the  lessor,  thus  leaving  a  reversion  in 
him,"  and  this  in  the  sense  in  which  the  term  is  now  employed, 
yet  formerly  it  was  not  uncommon  to  o-i-ant  land  in  fee,  re- 
serving an  annual  rent  charge,  notwithstanding  there  "was  no 
reversion  to  the  ]>erson  entitled  to  it;  and  the  covenant  to  pay 
such  rent  ran  with  the  land,  as  well  as  the  condition  of  re-en- 
try for  its  non-])ayment/ 

§  2.  Formal  Tarts.  'Wliere  a  lease  is  found  u])on  the 
records  which  has  expired  by  its  own  limitation,  it  raises  a 
vexed  Cjuestion  among  examiners  as  to  Avhether  it  should  be 
shown  or  passed  over  in  silence.  It  can  in  no  way  affect 
the  title;  it  is  not  a  charge  or  incujiiucaiice,  nor  is  ii  cvcr.  a 
cloud.  It  may  with  propriety  be  disregarded  unless  fol- 
lowed by  a  subsequent  renewal,  but  should  the  examiner 
deem  it  expedient  to  note  it  as  being  included  in  anjtl  covered 
by  his  certificate  of  search,  a  brief  statement  by  way  of  ap- 
pendix would  seem  fully  sufficient.  When  for  a  brief  or 
almost  expired  term,  being  a  charge  u})on  the  fee,  it  should 
be  shown  briefly,  and  when  for  a  long  term  of  years,  shown 
fully  and  succinctly.  When  for  ninety-nine  years,  or  re- 
newable forever,  it  has  much  of  the  dignity  and  many  of 
the  attributes  of  a  conveyance  of  the  fee  and  requires  cor- 
responding treatment.  When  shown  fully,  the  examiner 
will  observe  the  names  of  parties  as  in  case  of  deeds;  the 
dates;  the  description;  tlie  term;  the  rent  reserved;  the  gen- 
eral and  sjiecial  covenants;  the  conditions  and  resti-ictions, 
and  the  special  agreements,  if  any.  1'lie  execution  .-iiid  au- 
thentication should  comply  with  tlie  statute.  AViien  of 
sufficient  imjx)rtance  to- show  in  <r.rf,fim  the  entire  instru- 
ment should  l)e  careliilly  )>enise(l  and  the  covenants  and 
conditi<^»ns  jiarticulai-ly  observed.  'J'iie  aid  of  an  e.\|M'pienced 
conveyancer  is  fropiently  disi>ensed   with  in  preparing  in- 

'  Jackfujn  v.  Delacroix,  2  Wtrid.  Ktiiitli,  OS;  2  .Su^r<l.  Wiui.  72.1,  T.-r- 
433.  kins'  IvI.,  177;   Jaclisun  v.  Alluii,  3 

»  WDlar.l'H  Conveyancing'.  42.'*.  Cow.  2tH). 

*  Van     Kcnxttfkur     v.    Hays,    5 
23 


3.")  4:  ABSTRACTS    OF   TITLE. 

strumciits  of  this  cliaractcr;  printed  forms  arc  g-cnerally 
made  use  of,  and,  when  tliey  are  not  obtainable,  co])ies  are 
made  from  books  of  forms  or  from  some  old  instrument  in 
print.  In  this  way  covenants  are  transmitted  Avithout  being 
well  understood,  and  which  often  astonish  the  parties  to  be 
bound  when  occasion  arises  which  calls  for  the  j^erformance 
of  them.'  The  dates  are  important  in  leases,  much  more  so 
than  in  absolute  conveyances,  and  frequently  are  of  control- 
ling efficacy  in  determining  the  duration  of  the  term.  The 
words  of  limitation  of  the  term  will  also  be  carefully  noted, 
as  also  the  words  of  forfeiture  and  ceaser.  The  proper 
words  to  be  used  in  creating  a  limitation  upon  a  term 
granted  are,  "  while,"  "  as  long  as,"  "  during,"  and  "  until."  ' 
The  words  of  grant  are,  "  demise,  lease  and  let,"  or  "  to 
farm  let,"  but  these  w^ords,  as  in  case  of  deeds,  have  little 
efficacy,  and  any  other  words  which  show  the  intention  Avill 
do  as  well.'  The  matter  of  execution,  as  sealing,  acknowl- 
edgment, etc.,  is  statutor}'-,  but  as  a  rule  neither  of  the  afore- 
mentioned formalities  are  necessary. 

William  31.  Johnson      "]       Lease. 

to  and  loith  [      Dated,  etc. 

Hiram  W.  Jamison. 

Doc.  mo,uo. 

First  party  leases^  demises  and  lets  to  second  party  the 
following  described  real  estate  in  Cooh  County,  Ills.,  to  wit: 
[descrihe  the  property.'] 

To  hold  for  the  term  of  ten  years  from  {the  day  of  the 
date  hereof;  or,  a  specific  date,  if  inserted),  at  the  annual 
rental  of  $500.00 pay ahle  semi-anniially. 

Said  second  party  covenants:  for  the  payment  of  the  rent 
reserved;  for  the  payment  of  all  taxes  and  assessments  levied 
on  said  premises  during  the  term  aforesaid;  against  waste, 
against  sul>-leasing,  etc. 

•  Phillips    V.   Stevens,   16  IMiiss.  ^  Ilallett  v.  Wylie,  3  Johns.  44*; 

239.  Taylor's- Landlord  and  Tenant,  114 

5  Vannntta  v.   Brewer,  32  N.  J.  (6th  Ed.). 
Eq.  2Ca. 


*  *  * 

*  *  •St 


LEASES.  OOO 

Said  first  party  covenants:  for  quiet  enjoyment;  for  the 
renewal  of  the  term  hereby  demised  at  the  expiration  thereof 
for  the  same  time  and  iipon  the  same  terms  as  this  indent- 
ure, etc. 

Promdes,  that  in  case  said  second  party  shall  neglect,  or 
fail  to perfrom  and  observe  any  or  either  of  before-mentioned 
covenants  on  his  part  to  be  performed^  the  term  hereby  de- 
mii<ed  is  to  cease  and  determine,  and  that  first  paiiy  may 
enter  and  repossess  said  2)remises,  icithout  further  notice  or 
demand  and  expel  said  second  party  {and  those  claiming  under 
him)  without  prejudice. 

Provides  further,  that  in  case  the  premises  shcdl  be  de- 
stroyed by  fire  or  other  unavoidable  casualty,  that  the  term 
hereby  demised  shall  cease  {or,  that  the  rent  be  susjjcndcd,  etc). 

Signed  and  sealed  by  both  parties. 

A  cJcnowledgm  en  t. 

In  many  cases  it  will  be  necessar}"  to  set  out  the  cove- 
nants and  conditions  with  greater  precision  than  in  tlie 
example,  particularly  incases  of  ground  leases  for  long  terms 
and  in  cases  where  the  land  demised  has  been  highly  im- 
proved with  permanent  l)uildings  by  the  tenant.  In  cases 
of  leases  for  lives,  more  detail  will  be  necessary  in  describ- 
ing the  term,  and  the  ])rovisions  looking  toward  forfeiture. 

§  3.  Covenants  an<l  roiiditions.  Owing  to  the  igno- 
rance generally  prevailing  of  the  legal  elfects  of  covenants  in 
leases  and  other  instruments,  which  are  often  executed  with- 
out any  particular  ins])e(tion  or  knowledge  of  their  contents, 
people  are  often  surj)rised  into  contracts  which  neither  part  v 
intended  when  the  instrument  was  executed.'  The  woi-ds 
'' yit-'hling  and  paying,"  etc.,  constitute  a  covenant  for  the 
payment  of  rent,' which  runs  with  the  land,  and  f(»rmerlv, 
if  not  qualified  by  any  exception  or  condition,  bound  th«' 
tenant  to  pay  rent  during  the  continuance  of  tlie  term,  not- 
withstan<ling  the  jiremises  were  destroyed  by  fin;  during 
the   tenancy.'      Covenants   for  rebuiMing,    repairing,  etc., 

'  Pliillips  V.   StoveiiH,    10    Mohs.  '  lit- I-:irwy  ?-.  (I.nir.np,  5  .Si-Id.  0 

2aa.  »  Halhtt  r.  WsVw,  :i.J..lms.  1 1. 


35G  ABSTRACTS    OF    TITLE. 

run  ^vitll  the  land  ami  aic  obligatory  upon  both  ])artios 
and  thoir  assigns,'  according  as  either  of  the  parties  are 
bound.  The  covenant  to  pay  for  any  buildings,  erected 
by  the  tenant,  at  the  expiration  of  the  term,  runs 
with  the  land  and  inures  to  the  benefit  of  the  assignee.'' 
The  covenant  of  rencAvel  is  one  of  the  most  important 
noticed  by  the  examiner,  and  like  those  just  mentioned  is 
incident  to  the  land.'  A  covenant  to  renew  implies  the 
same  term  and  rent,  but  not  the  same  covenants,"  and  is 
satisfied,  even  thougli  containing  a  covenant  to  renew  under 
the  same  covenants  contained  in  the  original  lease,  by  a  re- 
newal omitting  the  covenant  to  renew."  The  burden  of  tlie 
})ayment  of  taxes  and  assessments  is  frequentl}'  assumed  by 
the  tenant,  particularly  in  long  terms,  but  whether  assumed 
by  lessor  or  lessee  it  runs  Avith  the  land,  and  binds  the 
respective  assigns."  The  covenants  of  leases  are  usually 
protected  by  a  condition  avoiding  the  estate  and  working  a 
forfeiture  in  case  of  breach,  and  this  condition,  which  is  of 
the  essence  of  the  lease,  must  always  be  noticed  at  such 
length  as  its  importance  seems  to  demand. 

It  is  not  uncommon  for  the  landlord  to  give  to  the  tenant, 
by  an  agreement  in  his  lease,  an  option  to  purchase  the  de- 
mised premises,  and  whenever  such  agreements  are  inserted 
they  should  be  displayed  in  the  abstract. 

§4.  Implied  Covenants.  It  is  a  fundamental  principle 
that  the  law   will  always   imply   covenants   against   para- 

'  Allen  V.  Culver,  3  Donio,  284.  and  the  owner  of  the  reversion  or 

■^  Lametti  v.  Anderson,    6   Cow.  fee  will  be  compelled  to  execute  a 

302:  Van  Ransselt^r  v.  Pcnnimar,  new  lease.     Banks  v.   Haskie,   45 

6  Wend.  569.  Md.  209. 

3 Sutherland    v.     Goodnow,    108  ^  Carr  u  Ellison,  20  Wend.  178. 

111.  528.  A  covenant  to  renew  which  does 

*  Rutgers  V.   Hunter,   6    Johns.  not  state  the  terms  or  length  of 

Ch.  218.     The  covenant  for  renew-  time  of    such  renewal,   has  been 

al  may  be  specially  enforced,  pro-  held  void  for  uncertainty:  Laird  v. 

vided    the  application    be    made  Boyle,  2  Wis,  431. 

within  a  reasonable  time  after  the  *Post  v.  Kearny,  2  Comst.  394; 

expiration  of    the  former     lease,  Oswald  v.  Gilfert.  11  Johns.  443. 


LEASES.  3o  t 

mount  title,  and  against  sncli  acts  of  tlie  landlord  as  destroy 
the  beneticial  enjoyment  of  the  premises.' 

§  5.  Agricultural  Lauds.  To  avoid  |x?rpctuities,  as 
Avell  as  the  creation  of  large  manorial  estates,  a  majority  of 
the  States  have,  either  by  a  constitutional  provision  or  an 
express  statutory  enactment,  prohibited  tlie  lease  or  grant  of 
agricultural  land  for  a  longer  period  than  twelve  or 
fifteen  years,  and  leases  made  in  contravention  of  this  pro- 
hibition, in  which  there  is  reserved  any  rent  or  service  of 
any  kind,  are  declared  to  be  void.  The  leases  or  grants 
contemplated  by  the  law,  are  such  as  were  held  by  the 
tenant  upon  a  reservation  of  an  annual  or  periodical  rent  or 
service,  to  be  paid  as  a  compensation  for  the  use  of  tlie  es- 
tate granted.  It  is  still  competent  to  make  a  grant  for  life, 
or  lives,  upon  a  good  consideration  to  be  paid  for  the  estate, 
which  cousideration  mav  be  payable  at  once,  or  by  install- 
ments, or  in  services,  so  that  it  be  not  by  way  of  rent.  To 
bring  it  within  the  law  tliere  must  be  a  reservation  of  rent 
or  service.'  A  reservation  is  defined  as  a  keeping  aside,  or 
providing,  as  when  a  man  lets,  or  parts  with  his  land,  but 
reserves,  or  provides  himself  a  rent  out  of  it  for  his  liveli- 
hood; and  a  rent  is  said  to  be  a  sum  of  money,  or  other 
consideration,  issuing  yearly  out  of  lands  and  tenements. 
It  must  be  profit,  but  it  is  not  necessary  that  it  sliould  be 
mone}''.  The  ])rofit  must  be  certain,  and  it  must  also  issue 
yearly.* 

§  C.  Assigiinieiit  of  Lease.  To  constitute  an  a.ssigmncMit 
of  a  leasehold  interest,  the  assignee  must  take  precisely  the 
same  estate  in  the  whole  or  in  a  ])art  of  the  leased  pi-cmises 
which  his  assignor  had  thci-cin.  He  must  not  only  take  for 
tlie  whole  of  tlie  uin'xj)in'd  term,  but.  In'  must  take  the 
whole  estate,  or  in  (jthcr  woi-ds,  the  wlioh*  tci'u>;*for  the 
word  "term"  do«^s  not  mcicly  sigtiify  the  time  spccilird  in 

'  StroeU'r  v.  Strci-UT.  4-)   111.  1-m;  *  \';m  KaiiMsi'lii>r  v.  (Iiillii|>.  ."i  |K.- 

Bon?el  V.  I^'iwton,  00  .\.  Y.  2y;{.  nio,  t.')!.     Tlio  |iiiich:iscr   uihIit   a 

»  I'arw-ll  f.  Stryk.r,  11  N.  Y.  JHO.  ii)<.it;;.i-.>  of  all  tin-  cHlat^'  of  a  Ich- 

*  St'-plii-riK  tf.  K4'yiujlil«,  0   N.  Y.  »<••<'.  '\h  an  a,KNi;^iifc:  Kfariuy  v.  I'owt, 

4.%;  2  Blk.  Ojiii.  Ji.  1  .San.K.  |i»;,. 


35 S  ABSTKACTS    OF   TITLE. 

the  leaso,  but  the  estate  also  and  interest  that  passes  by  the 
lease  ;  and  therefore  the  term  may  expire   during   the   con- 
tinuance  of   the   time,  as  by  surrender,  foi'feiture,  and   the 
like.'     The  grant  of  an  interest,  therefore,  Avhicli  may  possi- 
bly endure  to  the  end  of  the  term,  is  not  necessai'ily  agi'ant 
of  all   the  estate  in  the  term.     If,  by  the  terms  of  the  con- 
veyance, it  be  in  the  form  of  a  lease  or  an  assignment,  and 
new  conditions  with  a  right  of  entry,  or  new  causes  of  for- 
feiture are  created,  then   the   tenant   holds   by  a   dilferent 
tenure  and  a  new  leasehold  interest  arises,  which   can  not 
be  treated  as  an  assignment  or  a  continuation  to  him  of  the 
original  term.     When  an  estate  is  conveyed  to  be  held  by 
the  grantee  upon  a  condition  subsequent,  there  is  left  in  the 
grantor  a  contingent  reversionary  interest; "  and  where  by 
the  terms  of  an  instrument  which  purports  to  be  an  under 
lease,  there  is  left  in  the  lessor  a  contingent  reversfonary 
interest,  to  be  availed  of  by  an  entry  for  breach  of  condition, 
which  restores  the  sub-lessor  to  his  former  interest  in  the 
premises,  the  sub-lessee  takes  an  inferior  and  different  estate 
from  that  which  he  Avould  acquire  by  an  assignment  of  tlie 
remainder  of  the  original  term;  that  is  to  say,  an  interest 
which  may  be  terminated  by  forfeiture,  on  new  and   inde- 
pendent grounds,  long  before  the  expiration  of  the  original 
term.     If  the  smallest  reversionary  interest  is  retained,  the 
tenant  takes  as  sub-lessee,  and  not  as  assignee.* 

'  2  Black.  Com.  144.  ^  Dunlap  v.  Bullard,  11  Pu^portor, 

'Austin  u.  Cambridgeport  Parish,  774;  McNeil  t;.  Kendall,  128  Mass. 

21  Pick.  215;  Brattle  Squai-e Church  245. 

V.  Grant,  3  Gray,  147. 


CHAPTER  XXI. 

MISCELLAXEOUS  EVIDENCE  OF  AXD  AFFECTING  TITLE. 

§  1.  General  remarks.  §  '^-  Incorixireal  heretlitamonts. 

2.  Irregular  instruments.  '^^  Easements  and  servitudes. 

3.  Municipal  ordinances.  ^-  Party  wall  agreements. 

4.  Operation  and  effect  of  ordi-  If*.  Letters. 

nances.  11.     Affidavits. 

5.  JIunicipal  resolution.  12.     Unrecorded  instiiiments. 

6.  Ottiiial  certificates. 

§  1.  (ieiu'ral  Kemiirks.  In  this  chapter  it  is  proposed 
briefly  to  notice  a  variety  of  instruments  which  are  not  sus- 
ceptible of  classification  in  other  divisions  of  the  work,  l)ut 
wliich  have  a  direct  bearing  upon  the  question  of  title,  and 
which  must  be  included  in  all  properly  prepared  abstracts, 
])rovidetl  they  appear  upon  the  records  during  tlie  jieriod 
covered  by  the  search.  Of  this  nature  are  affidavits,  munic- 
ipal ordinances,  letters,  etc.,  all  of  which  are  ])roper,  and, 
under  certain  conditions,  oom})etent  evidence,  in  supi)ort  of 
the  facts  so  presented. 

§  2.  Irrcj^ular  Instruinoiits.  Tins  is  the  name  a]^|)li(Ml 
by  examiners,  to  all  conveyances  and  instruments  whii-Ii 
are  not  susceptible  of  sufficient  identification  of  the  subject- 
matter  to  j)ermit  of  there  l)eing  ])osted  in  tlu^  tract  indices. 
Tliev  inclu<le  "Jjlank"  conveyances,  that  is,  all  conveyances 
in  \vhi(.-Ii  tha  prop3rty  is  mentioned  only  in  gen -ral  terms 
and  not  sjx.'cifically;  letters  <tf  attorn(!y  giving  only  a  i^en- 
eral  ]>o\ver;  releases,  conlirmations,  (!tc.,  which  deseril)e  no 
pro|K;rty  but  allude  to  other  instruments  for  iih-nl ilie.it ion  ; 
afli«lavits  of  facts  not  directly  connecte<l  with  I;in«l,  bnt 
which  incidentally  affect  or  im|ilicate  title;  an<l  all  other  in 
struments  an<l  <locuments  which  <lo  nut  njiim  their  face 
in<licate  the  particular  |»arcel  of  land  they  alfecl. 


3G0  AESTKACTS   OF   TITLE. 

In  compiling  the  abstract  all  these  matters  should  receive 
careful  attention,  and  not  only  should  all  independent  in- 
struments which  generally  aiTect  the  title  be  shown  but  also 
ai)pendiccs  to  instruments  conveying  other  lands,  where 
sueh  a{>pendices  luive  any  a]>i)reeiable  bearing  upon  the 
])remises  in  question.  The  following  will  serve  to  illus- 
trate : 

Appended  to  Document  SJfj/Jl'i-,  in  hooh  lOSG,  page  631, 
7'ecorded  Sept.  13,  lSSl,{s  the  following : 

Affidavit  )      Sahscrihed  and  sworn  to    Oct.   23, 

lij  \  18S0. 

Thos.  J.    ^Yalsh.      )       Thathe  was  ahachelor  until  July, 
1S30. 

§  3.  Municipal  Ordinances.  A  city  council  or  village 
board  is  a  miniature  legislature,  authorized  to  legislate  for 
a  locality,  and  their  ordinances,  within  the  poAver  intrusted, 
have  all  the  force  of  laws  passed  by  the  legislature.  They 
are  restrained,  however,  to  such  matters,  whether  si)ccially 
enumerated  or  included  under  a  general  grant,  as  are  not  at 
variance  with  the  general  laws  of  the  State,  and  are  reason- 
able and  adapted  to,  or  proper  for,  the  purposes  of  the  corpo- 
ration. Ordinances  must  be  consistent  with  public  legislative 
])olicv,  and  must  not  contravene  common  right.  These  are 
general  principles  universally  recognized.'  '^Vithout  entering 
into  a  discussion  of  the  nature,  requisites  and  validity  of 
ordinances,  Avhich  as  a  rule,  must  be  deteniiincd  by  reference 
to  the  organic  act  or  charter  of  the  municii;ality,  it  may  be 
stated  generally,  that  such  ordinances  must  be  adopted  by 
the  proper  body,  and  published  in  the  manner  provided  by 
law,"  the  practical  operation  of  an  ordinance  dating  from 
its  passage  and  publication.  When  so  passed  and  ])ublished 
they  afford  constructive  notice  to  all  persons  bound  to  take 

>  Long  V.  Shelby  County,  12  Re-  *  1  Dil.  Municipal  Corp.  376;  Bar- 

porter.  285;  Maxwell  v.  Jonesbro,       nett  v.  Newark,  28  111.  62;  Couboy 
11  Hfisk.  (Tenn.)  257;  Williams  v.       v.  Iowa  City,  2  Iowa,  90, 
Augusta,  4  Ga.  509:  Mount  Pleas- 
ant V.  Breeze,  11  Iowa,  399. 


MISCELLANEOUS    EVIDENCE   AFFECTING    TITLE.  301 

notice  of  tliem.'  The  only  occasion  the  examiner  will  have 
to  show  the  acts  of  municipal  bodies,  will  be  in  relation  to 
the  opening  or  vacating  of  streets  and  alleys,  with  an  occa- 
sional conveyance,  which  should  be  })refaced  by  a  synopsis 
of  the  ordinance  or  resolution  authorizino:  same.  Eeinir  in 
the  nature  of  public  laws  no  record  is  required  in  the  reg- 
istry of  deeds,  though  this  may  be  accomplished  by  the 
individual,  and  recourse  must  usually  be  had  to  the  c«)r})o- 
rate  records.  The  abstract  should  show:  the  dates  rcs])ect- 
ively  of  passage  and  publication,  and,  when  recorded,  the 
date  of  record;  the  subject-matter,  In-icfly  stated;  and  the 
attestation,  if  any  is  required.  The  following  will  more 
fully  illustrate  the  subject : 

Vacation  \         Ordinance^  Ko.  1,000. 

hy  \       AiJoptt'd  Sept.  6,  1873. 

The  Village  of  Jeferson.     )        Iiecordcd  S>i'jif.  15,  1S73. 

Boole  6  of  plats,  page  13. 

Itecites,  that  whereas,  a  petition  has  Iteen  dull/  fled  icith 
the  Board  ef  Trustees  of  the  Village  of  J(Jferso7i,  signed  hy 
Thos.  Wilson  and  Lillie  M.  C.  Wilson,  representing  that 
they  are  the  owners  of  Blocks  7G  and  77  in  Norwood  Park, 
and  j)raying  said  hoard  to  order  a  vacation  of  all  that  part 
of  Washington  Street  lying  hetween  said  BloeliS,  commeiicing 
at  Indiana  Street  and  running  to  Eastern  Avemie. 

And  whereas,  satisfactory  evidence  having  heen  fhd  hy 
mid  petitioners  of  due  notice  of  said  ajplication,  and  no 
ohjections  appearing,  therefore  it  is, 

Ordained  hy  the  President  and  Board  of  Trustees  of  the 

Village  of  Jiff crson,  that  all  that  part  of  Waxliingtua  Street, 

in  Norwood  Park,  which  lies   hetween    Blocks   76   and   77, 

heginning  on  Indiana  Street  and  running  through  to  Pastern 

Avenue,  he  and  saine  henhy  is  vacated. 

PuUished  Srpt.  7,  1873. 

K(/rK. — Aj'jnhded  tothr  rrri>rd  (f  the  fnn  gnl  iig  is  a  rrrfff- 
cat^  hy  S.  M.  JJaeis,  *'  Vitlogr  C'lt  rk,''^  thai  same  is  a  true 
copy  of  the  original  orilinancc 

•Pulinyruv.  MorUjti,  25  Mo.  .Vj:{;  Huir.il..  r.  \V.l.st.r,  10   W.  n.l.  yi>. 


3G2  ABSTRACTS    OF   TITLE. 

§  4.  Oporatioii  and  Effect  of  Onliiuiiicos.  It  doos  not 
seem  that  a  immieipal  corporation,  more  than  an  in(livi(hi;il, 
can  convey  tlie  title  to  real  estate  in  any  other  manner  than 
by  a  duly  executed  deed,'  and  Avliere  such  conveyance  has 
been  attempted  by  ordinance  no  title  has  been  held  to  pass, 
while  such  ordinance  was  further  held  to  be  so  defective  as 
a  conveyance  as  not  to  give  color  of  title  in  sn])])ort  of  an 
adverse  possession/  A  release  of  a  right  in  real  projierty, 
b}'^  ordinance  and  not  by  deed,  will,  it  seems,  be  enforced  in 
equity,  when  within  the  scope  of  the  corporate  power,  and 
upon  consideration,'  while  the  legal  effect  of  a  vacation  of  a 
public  street  or  avenue,  is  to  revest  the  title  of  the  land 
embraced  within  its  limits,  in  the  original  owner  who 
dedicated  same/ 

§  5.  Municipal  Resolutions.  A  resolution  is  an  order 
of  the  council  or  governing  board  of  a  special  and  temporary 
character,^  but  ordinarily  has  the  same  effect  as  an  ordi- 
nance, as  both  are  legislative  acts.'  "Where  any  matter  is 
committed  to  the  decision  of  the  council  by  the  charter, 
which  is  silent  as  to  the  mode,  the  decision  may  be  evi- 
denced by  a  resolution,  and  need  not  necessarily  be  by  an 
ordinance,'  hence  it  is  customary  in  sales  of  the  municipal  real 
estate,  to  authorize  the  sale  and  transfer  of  same  by  a  resolu- 
tion which  also  directs  the  method  of  conveyance  and  nomi- 
nates the  persons  who  are  to  execute  the  deed."     It  would 

'  Dill.  Mun.  Corp.  §  451,  and  see,  act  of  the  corporation  prescribes  a 

Cofran    v.    Cofran,  5  N.    H.    458;  particular  mode  in  which  the  cor- 

Ang.  &  Ames  Corp.  g  193.  porate  property  shall  be  disposed 

^Beaufort  v.  Duncan,  1  Jones  L.  of,  that  mode  must  be  pursued:    2 

(N.  C.)  239.  Dill,  on  Mun.  Corp.  §  447,  and  see 

^  Grant  r.  Davenport,  18  la.  179.  McCracken  v.  San   Francisco,   16 

*  Hyde  Pai-k  v.   Borden,  94  111.  Cal.  591;Grojanu.  San  Francisco, 

26;  Gebhart  v.  Eeeves,  75  111.  301.  18  Cal.   590,   where  it  was  held, 

"  Blanchard  v.  Bissell,    11  Ohio  where    municipal    officers,  under 

gt.  96.  the  authority  of  a  void  ordinance, 

«  Sower  V.  Philadelphia,  35  Pa.  had  made  sales  of  corporate  real 

St.  231;  Gas  Co.  r.  San  Francisco,  estate,   that  no    title  passed,   the 

6  Cal.  190.  ordinance  and  sales    not    having 

'  State  V.  Jersey  City,  3  Dutch.  been  in  conformity  to  the  cliarter 

(N.  J.)  493.  which  prescribed  a  loile  for  such 

*If  the  charter  or    constituent  cases. 


MISCELLANEOUS    EVIDEXCE    AFFECTING    TITLE.  3G3 

seem  to  be  the  prevailing  doctrine  tliat  municipal  convers- 
ances of  real  estate  -wliich,  upon  their  faces  are  regular, 
carry  with  tliem  the  presumption  of  a  due  and  proper  exe- 
cution in  pursuance  of  law;'  "  hence,"  observes  Mr.  Dillon, 
"  it  is  unnecessary  for  the  grantee  or  party  claiming  under 
it  to  produce  the  special  resolution  or  ordinance  authorizing 
its  execution." '  This  may  be  true  for  the  ordinary  purposes 
of  conveyancing,  but  can  not  be  regarded  as  a  safe  rule  in 
the  preparation  of  an  abstract,  which  should  not  only  dis- 
close sulHcient  of  the  deed  to  show  a  regular  execution  upon 
its  face,  but  also  the  authority  in  pursuance  of  which  it  was 
made,  that  counsel  may  know  from  insi)ection  and  compari- 
son that  it  was  duly  executed,'  it  being  the  duty  of  counsel, 
so  far  as  may  be,  to  reduce  presum})tions  to  certainties,  and 
whenever  an  abstract  is  presented,  showing  a  municijxil 
deed  but  no  order  or  resolution  in  support  of  it,  a  requisi- 
t'on  should  be  made  for  the  eWdence  of  the  authority  under 
whii'h  it  was  executed. 

§  G.  Official  Certificates.  Certificates  of  officers  havmg 
the  legal  custody  or  su])ervision  of  records,  etc.,  as  well  as 
ministerial  officers  in  the  performance  of  some  legal  duty, 
are  of  frecpient  occurrence.  Usually  they  are  appended  to 
some  kind  of  documentary  evidence  to  wliich  they  have 
special  relation,  but  may  be  used  as  affirmative  and  inde- 
pendent proof  of  matters  within  the  certifying  ollicer's 
jurisdiction.  Instances  of  this  are  afforded  by  the  certifi- 
cates of  lev}',  attachment,  etc.,  made  by  officers  executing 
the  process  of  courts  and  which  afford  internal  ])roof  of  the 
matters  therein  recited.  Aside  from  the  certificates  of 
officei-s,  and  others,  reciting  their  own  acts  in  connection 
with  some  particular  proceeding  in  the  line  of  their  oflicial 
duty,  there  is  a  class  of  official  custodians  who  certify  fi-(»m 
the  records,  books,  files,  etc.,  committed  to  tlieir  care,  and  to 
whose  certificates,  under  tlieir  official  seal,  if  they  have  any, 

'Jamison   v.    Fojiiana,    43    Mo.  •Convcynncfsof  real  |»n>iM'rty  liy 

SC-T:   Flint  v.  Clinton   (,V>unty,    12  tin*  oflU-vre  of  n  niiinicipalcoriKtra- 

N.  H.   43.     S«i?  Hart  v.   Stone,  'M  lion  niuht   Im'  iiia<l<-  liy  virtue  of  a 

Conn.  01.  H|MMi;il  aiitliorily  for  that  j>iir|Hise: 

»Dill.  Mun.  Coq).  g  450.  Jkrrill  v.  l!arlMUik,  'SA  Mo.  Wl. 


3^)4:  ABSTRACTS   OF   TITLE. 

the  statute  m  some  cases  and  comity  in  otliers,  attaches  a 
certain  degree  of  im}H>rtance  as  evidence.  When  a  public 
olficer  is  required  or  authorized  by  law  to  make  a  certifi- 
cate or  aHidavit,  touching  an  act  performed  by  him,  or  to  a 
fact  ascertained  by  him,  in  the  course  of  his  oificial  duty, 
and  to  file  or  deposit  it  in  a  public  oflice,  such  certificate  or 
allidavit  when  so  filed  or  de[)osited  is  received  as  presump- 
tive evidence  of  the  facts  therein  stated,  unless  its  ell'ect  is 
declared  by  some  special  })rovision  of  law.  Under  this  head 
come  certificates  of  sale  by  masters  in  chancery  and  of  levy 
and  attachment  by  sheriffs,  examples  of  Avhich  will  be  found 
further  on.  Certificates  annexed  to  other  documents  for 
the  ])urpose  of  proof  or  verification  do  not,  as  a  rule,  require 
or  receive  extended  notice,  but  when  standing  alone,  and 
as  allirnuitive  evidence  of  some  particular  fact  they  acquire 
a  certain  dignity  that  calls  for  commensurate  treatment. 
When  these  certificates,  for  instance,  allude  to  facts  which 
appear  from  the  books,  files  and  records  of  the  officers  of 
State  in  regard  to  the  transfer  of  land  by  or  to  the  govern- 
ment, Federal  or  State,  or  by  the  State  to  individuals,  the 
orio-inal  evidence  of  which  is  not  accessible,  or  has  been  de- 
stroyed  or  lost,  they  become  of  the  highest  importance  and 
should  be  shown  in  detail.     As,  per  example : 


Certificate 

Ml 
Ernst    G.  Tim  me,  Sec- 
retary/   of   State,    of 
the  State  of   Wiscon- 
sin. 


Proof  of  Conoeijance. 
Dated,  etc. 


Said  Secretary  cei^tifies,  that 
from  the  hooks,  files  and  records  of 
the  office  of  Secretary  of  State,  it 
appears  that  on.  the  10th  day  of  June,  1850,  the  following  de- 
scribed real  estate,  situate  in  the  State  of  Wisconsin,  viz.: 
[set  out  description]  was  duly  transferred  hy  the  United 
States  to  the  State  of  Wisconsin,  and  that  on  the  loth  day 
of  July,  1852,  the  above  described  real  estate  was  duly  trans- 
ferred by  the  State  of  Wisconsin  to  William  Jones. 

Signed  by  said  Secretary  and  the  great  {or  lesser)  seal  of 
the  State  of  Wisconsin  affixed. 


MISCELLANEOUS    EVIDEXCE    AFFECTING    TITLE.  305 

Where  certiiicates  are  appemlant  merely,  the  degree  of 
notice  must  be  determined  by  the  cliaracterof  the  principal 
matter;  as,  if  in  the  foregoing  case  a  transcri]it  of  books, 
files,  etc.,  had  been  made,  the  certilicate  would  simply  have 
been  by  way  of  verification,  and  the  examiner  might  have 
shown  this  by  a  formal  abstract  of  the  instrument  as  above, 
or  he  might  with  equal  propriety  mention  it  in  this  manner: 

Cert'ificaie  hy  Enist  G.  Timme^  Sccreiary  of  State,  that 
the  ^^  annexed  and  foregoing''''  is  a  true  and  colored  tran- 
script of  all  book's,  fl(.'s,  records,  certificates  and  other  written 
or  documentary  evidence  of  title,  on  file  or  of  record  in  his 
ojflce,  relating  to  or  appertaining  to  the  title  to  the  lands  de- 
scribed in  the  foregoing  transcript,  and  of  the  whole  thereof, 
appended. 

§  7.  Incorporoal  Iloreditanionts.  In  an  Englisli  woilc 
on  titles  this  sul)iect  would  occupy  no  inconsiderable  s})nce, 
while  in  the  compilation  and  examination  of  English 
abstracts  it  plays  a  conspicuous  part,  yet  in  the  United 
States  the  term  is  seldom  used,  while  the  number  of  strictly 
incorporeal  hereditaments  is  very  small.'  AVhen  exercised 
in  this  country  they  are  usually  such  as  come  witliin  the 
definition  and  general  doctrines  of  easements  and  servi- 
tudes. 

§  8.  Easements  and  Servitudes.  An  easement  is  tech- 
nically understood  to  be  raised  or  created  l)y  a  grant,  but 
may  be  reserved  in  a  conveyance  as  efTectually  as  In'  a  grant 
by  deed.  Sej)arate  instruments  are  rarely  em|)lr»yed  to 
create  easements,  but  occasionally  grants  of  rights  of  way 
will  be  found  as  well  as  instrnments  granting  riparinn 
riirhts,  and  in  all  cases,  where  snc-h  inslninients  are  matters 
of  record,  jnirchasers  of  the  land  air»Hted  tlierei)y  will  take 
the  premises  subject  t<j  whatever  rights  they  may  confer 

'  The  jiriru-ifKil  in«-or|K»n'al  hero-  cliiHcs,  (tniceH,  coiiiimoiih,    rij^hts  of 

(liUiiiieiits   a<  ((inliMK   Ui  t)n'  <•<»»!-  way,  of    liKl»t,  \v<hk1,   \vat<'r.  rents 

iiioii  law  an-:  Advouwms ami  next  aii<l    aiiniiitief<:  L(h<    on  AljHtnutH, 

prew-ntatioiu*,  litlu-M,  manors,  fran-  •117;  2  lihick.  Com.  21. 


30G  ARSTKACTS    OF    TITLE. 

iijwn  otliers  and  burdened  with  the  sti})ulated  service.' 
Wliere  an  easement  is  appurtenant  or  appendant  to  an  estate 
in  fee  in  hinds,  or  in  gross,  to  the  person  of  the  grantor  for 
life  or  f(ir  years,  it  is  incapable  of  alienation  or  conveyance 
in  fee."  AVlien  in  gross,  it  is  purely  personal  to  the  holder, 
and  can  not  be  assigned,  nor  Avill  it  pass  by  descent ; '  when 
appurtenant,  it  is  attached  to,  and  is  incident  to,  the  land 
anil  passes  with  it,  whether  the  land  bo  conveyed  for  a  term 
of  years,  for  life,  or  in  fee.*  Being  an  incident  to  the  land, 
it  can  not  bo  separated  from  or  transferred  independent  of 
the  land  to  which  it  inheres." 

§  0.  Party  Wall  Agreements.  In  populous  localities 
party  wall  agreements  are  of  frequent  occurrence,  and 
though  not  technically  conveyances  of  land,  the  legal  effect 
of  same  is  to  give  to  each  of  the  parties  an  easement  on  the 
other's  land  which  becomes  appurtenant  to  their  several 
estates  and  passes  to  their  respective  assignees  by  any  mode 
of  conveyance  that  may  be  effectual  to  transfer  the  land 
itself.  While  the  authorities  are  not  altogether  harmonious 
with  respect  to  the  legal  effect  of  covenants  and  agreements 
providing  for  the  construction  of  party  walls  between  adja- 
cent proprietors,  the  decided  Aveight  of  authority  fully 
establishes  the  propositions  above  stated,  and  an  agreement 
under  the  hands  and  seals  of  the  parties,  containing  mutual 
covenants  and  stipulations  made  binding  on  their  respective 
heirs  and  assigns,  will,  when  duly  delivered  and  acted  upon, 
create  cross-easements  in  the  respective  owners  of  the  adja- 
cent lots  wnth  which  the  covenants  in  the  agreement  will 
run,  so  as  to  bind  all  persons  succeeding  to  the  estates  to 

'  Tui-pin  V.  R.  R.  Co.,  105  111.  11.  with  the  land,"  says  the  court  in 

*  Wash.  Easements.  10;  Koelle  v.  Garrison  v.  Rudd,  19  111.  558,  "  and 

Kneclit,  99  111.  496.  like  them,  must  respect  the  thing 

^  Smiles  v.   Hastings,  23  N.  Y  granted  or  demised,  and  must  con- 

217;  Koelle  v.  Knecht,  99  111.  496.  cem  the  land  or  estate  conveyed. 

••See    "Easements    and    Servi-  They  pass  by  a  conveyance  of  the 

tudes,"  supra,  p.  21.  land,    under  the  term     '  ajipurte- 

'  Wash.    Easements,    10;    Koelle  nances,'   without  being   expressly 

V.  Knecht,  99  111.  496.     "  Tliey  are  named." 
in  the  nature  of  covenants  running 


MISCELLANEOUS    EVIDENCE   AFFECTING    TITLE.  307 

which  such  easements  are  a]ipurtenant.'  Purchasers  from 
such  parties  take  with  constructive,  if  not  actual,  notice  of 
such  agreement,  and  are  presumed  to  have  assumed  the 
burdens  as  well  as  the  benefits  which  are  incident  to  it.^ 
"  We  concede,"  says  Mulkey,  J.,  "  the  general  doctrine,  that 
where  the  relation  of  landlord  and  tenant  does  not  exist, 
only  such  covenants  as  are  beneficial  to  the  estate  will  run 
with  the  land ;  but  we  do  not  regard  the  doctrine  as  appli- 
cable to  cases  where  adjacent  proprietors  have  so  contracted 
as  to  create  mutual  easements  upon  each  other's  estates,  and 
entered  into  covenants  with  respect  to  the  same.  The  new 
relation  thus  created  being  of  an  intimate  character,  involv- 
ing reciprocal  duties  with  respect  to  each  other's  estates, 
may  be  regarded  as  an  equivalent  for  the  absence  of  tenure, 
so  as  to  give  effect  to  all  covenants  without  regard  to 
whether  they  are  beneficial  or  onerous." '  The  abstract 
should  disclose  all  the  material  facts.  An  example  is 
appended : 

Jliram  Thompson  )      Piirfi/    Wall  Agreement. 

icith  \      Dated,  etc.       *       *      * 

Jared  B.  Lake.  )       *       *       *      ^f      -      * 

liccites,  that  first  party  is 
the  owner  of  the  followmg  described  land  [<lescrihlng  samel 
and  that  second  party  is  the  owner  of  certain  land  adjolnlny 
same  described  as  [describing  sa7ne']  and  that  said  first  party 
proposes  to  erect  on  his  said  land  a  brick  building,  and  is 
desirous  of  having  the  wall  between  the  two  above  described 
lots  built  one  half  on  each  of  said  lots  for  their  7nntual 
Venefit,  and  that  second  party  has  assented  to  same,  on  c(mdi- 
tion  that  he  shall  have  the  right  of  using  the  said  wall  as 
hereinafter  expressed. 

'  Hart  V.   Lyon,   90  N.  Y.  m?,;  Dorsr-y  v.    R.    I{.   Co.,  58  III.    f.."); 

TlioiiiMon  V.  Curtirt,   28   Iowa.   12L"J;  HindKc   v.    Hakcr.    r.7   N.   Y.    20S); 

Stari<li.sh  v.    I^wrunco,    111   Muks.  Ro^jcrs   r.    SiiiKhciiinT,   T>0    N.    Y. 

111.  OKJ;  Hart  r.    Lyon,  IK)   N.  Y.  OOU; 

'  H'K-ho  r.  Ullman,  101  III.           ;  Thoninon  r.  CurtJH.  2H  I..\vn.  229. 

Blain  v.   Cuuibton,   9«  Muhh.    317;  » Itochu  v.  UUnuui,  101  111. 


3C8  ADSTRACTS    OF   TITLE. 

Aiifl  said  jiarties  covenant  and  agree  to  and  with  each 
other  as  follows : 

Said  second  j^frt//  agrees  that  if  first  party  shall  Itdld  at 
any  time  a  jyartition  icrdl,  he  may  erect  and  maintain  one 
half  of  same  on  Jiii^^  second  jxirty^s,  land  [state  conditions 
if  any']  and  m,ay  enter  on  same  loith  worl-tnen  and  material^' 
and  further  agrees  that  xohenevcr  he  shall  mahe  iise  of  f<a)nt'^ 
he,  or  his  heirs  and  assigns,  will  pay  to  said  first  jja/iy  one 
half  of  the  ivhole  cost  of  said  paHiHon  vxdl. 

Said  first  party  agrees  that  second  jr>«/'^y,  his  heirs  and 
assigns,  may  use  said  partition  wall  for  the  henefit  of  any 
huilding  he  may  hereafter  erect  or  place  on  his  said  land, 
provided  he  does  not  cut  into  said  wall  heyond  his  otcn  half 
thereof,  and  pays  the  price  stip'idated  al'0'>'^.. 

Signed  hy  loth  parties^  and  acknowledged  by  them,  August 
1,  1S79. 

§  10.  Letters.  For  a  large  variety  of  matters  relating 
to  interests  in  land,  and  sales  and  conveyances  of  such  in- 
terests, which  by  law  are  not  required  to  be  under  seal  or 
attested  by  any  solemnities,  letter  correspondence,  notes 
and  memoranda,  are  competent  evidence.  This  is  particu- 
larly the  case  in  regard  to  trusts,  agreements  and  conditions 
of  sale,  and  sometimes  in  supplying  missing  information 
in  relation  to  descents,  etc.  Hence,  it  is  not  uncommon  to 
find  letters  of  record  relating  to  or  concerning  interests  in 
land.  Familiar  instances  of  letter  evidence  is  afforded  in 
the  following:  a  contract  for  the  sale  of  land  made  by  letter 
correspondence  between  the  parties  is  valid  and  will  be 
enforced,  if  the  consideration  to  l)e  paid,  and  the  time  of 
payment,  and  description  of  the  property  appear  sufficiently 
certain  to  enable  a  court  to  make  a  decree.'  Where  a  per- 
son acquires  title  to  land  in  trust  for  another,  and  Avrites 
him  a  letter  showing  clearly  that  he  holds  the  same  in 
trust,  this  will  be  sufficient  to  manifest  the  trust  as  required 

'Ncufville  V.  Stewart,  1  Hill,  166;  Firth  v.  Lawrence.  1  Paige,  434. 


MISCELLANEOUS    EVIDENCE    AFFECTING    TITLE.  309 

bv  the  statute  of  fmiuls.'     The  abstract  of  a  letter  consists 
of  little  else  than  its  recitals. 

§  11.  Ailidiivits.  In  abstracting  the  proceedings  of 
courts,  in  matters  relating  to  title,  affidavits  will  occasion- 
ally be  met  with,  but  as  a  rule  they  are  of  such  a  nature 
that  their  contents  are  immaterial  to  the  examination  and 
they  may  be  disposed  of  in  a  single  line  and  fre(|uently 
passed  by  without  notice.  There  is,  however,  another  class 
of  affidavits  that  are  resorted  to  by  conveyancers  under  a 
choice  of  difficulties,  and  Avhicli  frequentl}"  ligure  on  the 
records  and  in  the  abstract.  These  are  the  ex  jxirte  sworn 
statements  of  individuals  res])ecting  some  question  raised 
bv  the  instruments,  usuallv  relatinc:  to  deaths,  marriajres, 
births,  etc.,  concerning  which  no  other  or  better  evidence 
can  be  found.  Family  records  are  not  univei'sal,  nor  even 
where,  as  is  the  custom  of  many  of  the  States,  a  record  of 
births,  deaths  and  marriages  is  kept  by  projier  officers,  can 
the  requisite  information  be  always  obtained.  When  such 
is  the  case  resort  must  be  had  to  the  next  best  and  most 
available  testimony,  which  is  usually  supplied  by  the  affi- 
da\it  of  some  person  setting  forth  his  knowledge  of  the 
matters  under  inquiry.  Sucli  an  instrument,  it  is  true, 
possesses  no  legal  validity,  and  not  being  made  under  tlie 
sanction  of  a  court,  or  in  any  legal  proceeding,  is  not 
strictly  evidence  for  any  purpose,'  yet  being  usually  all 
that  can  be  adduced,  it  has  been,  as  it  were,  by  common 
consent  of  the  profession,  adopted  as  evidence  in  tlie  exami- 
nation of  titles  and  the  testimony  taken  as  corroborative 
evidence  of  general  reputation,  concurrent  ]>ossession,  etc' 
Sucli  allidavits,  though  ])ossessing  lu)  h'gal  ellicacy,  shouM 
yet  be  attended  with  the  same  solemnities  and  formalities 
that  are  required  in  affichivits  for  use  in  court.  Ordinarily 
wliere  an  alfiihivit  is  recpiircd,  and  tlie  statute  doi-s  not 
designate  the  particular  officer  before  whom  the  act  may  be 

'  .Mf>ore  V.  Pirkett.  02  111.  ITiS.  « I/f  on  Alwtraots,  215;  Taylor  on 

'(^iiinn   V.    Itawwjii,   5  111.  App.       Titi»-s,  i;j(J. 


370  ABSTRACTS    OF    TITLE. 

])erformc(l,  it  may  be  made  before  any  ollicer  having  gen- 
eral authority  under  the  statute  to  administer  and  certify 
oaths.'  No  legal  rules  can  api)ly  to  aflidavits  of  this 
nature,  except  inferentially,  but  so  far  as  tlie  same  may 
a])ply,  they  should  be  construed  by  the  same  standard  as 
alHdavits  in  legal  lirocecdings."  The  contents  of  an  alli- 
davit  may  be  shown  in  this  manner: 


Affidavit 
William  0.  Jones. 


Suhscrihed  and    sworn    to 
Auq.  ^,  18S3. 

keeorded  Aug.  <9,  1S83. 
Book  110, 2Mge  220. 
Venue,  Cook  County,  Ills. 
Recites  that,  affiant  loas  loell  acquainted  with  liohert 
Simpson,  the  identical  person  named  as  grantor  in  a  deed 
from  Robert  Simpson  to  Walter  Scott,  dated  June  1,  1S70, 
and  recorded  June  2,  1879,  in  Book  52,  page  521  of  the 
records  of  Cook  County,  Ills.,  as  document  2,110,  and  that  at 
the  date  of  said  deed  said  Robert  Simpson,  to  the  knowledge  of 
affiant,  vjas  an  unmarined  man. 

Jurat  hy  "  William  Black,  Notary  Public.''^     No  Notarial 
seal  of  record.     No  other  designation  of  officer. 

§  12.    Continued— General  Requisites — Sufficiency.    It 

is  usual,  though  not  necessary,  for  the  affiant  to  subscrilje 
the  affidavit,  but  in  the  absence  of  positive  requirement,  an 
affidavit  which  appears  by  jurat  and  signature  of  an  officer 
thereto,  to  have  been  duly  sworn  to.  is  sufficient,"  but  if  tlie 
officer  fails  to  sign  the  jurat  it  is  invalid.*  An  affidavit 
relied  upon  as  evidence  of  facts  must  allege  the  facts  posi- 
tively. Averring  them  to  exist  "  as  affiant  believes  "  proves 
nothing." 

I  Dunn  V.  Ketchum,  38  Cal.  93;  »  Turpin  v.  Road  Co.,  48  Inrl.  45; 

Wood  V.  Bank,  9  Cow.  194.  Cappock  v.  Sniitli,  54  Miss.  640. 

"^  x\n  affidavit  is  simply  a  doclara-  ■•  Morris  v.  State,  2  Tex.  App.  502. 

tion  on  oath,  in  ^vriting,  sworn  to  *  Thomson  v.  Higginbotham,  18 

by  a  party  before  some  person  who  Kan.  42;  Murphy  v.  McGrath.  79 

has  authority  under  the  law  to  ad-  III.  594. 
minister  oaths,  and  need  not  be  in 
any    particular    form:    Harris    v, 
Lester.  80  111.  307. 


MISCELLANEOUS    EVTDF.XCE    AFFECTING    TITLE.  371 

§  13.  Unrecorded  Evidence.  A  loose  and  dangerous 
habit  prevails  with  many  examiners,  of  incorporating  in 
their  examinations  evidences  of  facts  not  disclosed  by  the 
records.  This  is  often  the  case  of  affidavits,  releases,  etc., 
the  examiner  usually  putting  such  unrecorded  matter  in  the 
shape  of  a  note,  and  stating :  ''  Mr.  Clank  has  this  day 
exhibited  to  us  an  affidavit  by  Wm.  Parsons,  of  Providence, 
R.  I.,  wherein  he  states  that  John  Jones  was  a  bachelor  and 
that  he  died  at  Providence,  R.  I.,  unmarried,"  etc.  Put 
this  is  the  mildest  form,  for,  in  an  abstract  now  before  the 
writer,  made  by  a  responsible  firm,  is  the  full  abstract  of  an 
instrument  inserted  at  the  request  of  their  client,  amf  which 

they  state  in  a  foot-note,  is  "  not  recorded  in County, 

Ills."  Under  no  consideration  should  this  ever  be  done  except 
in  the  solitary  case  of  titles  emanating  from  the  govern- 
ment. Where  the  examiner  possesses  reliable  data,  procured 
from  the  only  authentic  sources,  the  general  land  offices  of 
the  government,  statutes,  etc.,  this  is  not  only  permissible 
but  should  be  done  as  a  matter  of  course.  In  all  other 
cases,  if  the  client  deems  his  evidence  of  sufficient  impor- 
tance to  be  inserted  in  the  abstract,  it  should  first  be  filed 
for  record  in  the  offices  of  registration  where  it  Avill  be 
properl}'  covered  by  the  examiner's  certificate  of  search. 


CAIIPTER  XXII. 


MORTGAGES. 

;  1. 

Nature  of  mortgages. 

§  10. 

2. 

DilTeront  kinds  of  mortgages. 

20. 

3. 

The  equity  of  redemption. 

4. 

Riglits  of  mortgagor. 

21. 

5. 

Mortgages  aa  affected  by  es- 

22. 

tojipel. 

23. 

6. 

Merger. 

24. 

7. 

Equitable  mortgages. 

25. 

8. 

Vendor's  liens. 

9. 

Jlortgages  proper. 

20. 

10. 

Statutory  forms. 

11. 

Uncertainty  or  error  of  dc- 

27. 

scrijition. 

28. 

12. 

Covenants  in  mortgages. 

13. 

Effect  of  special  covenants. 

29. 

14. 

Special  stipulations  and  con- 

30. 

ditions. 

31. 

15. 

Effect  of  informality. 

83. 

16. 

Purchase  money  mortgages. 

17. 

Mortgage  of  the  homestead. 

18. 

Mortgage  of    after-acquired 
property. 

Record  of  mortgages. 

Notice  imputed  from  pos- 
session. 

Re-records. 

Trust  deeds. 

Power  of  sale. 

Assignment. 

Operation  and  effect  of  as- 
signments. 

Formal  requisites  of  assign- 
ments. 

Ri- lease  and  satisfaction. 

Form  and  requisites  of  re- 
lease. 

Release  by  trustees. 

Marginal  discharge. 

Foreclosure. 

Proof  of  title  xmder  fore- 
closure. 


§  1.  Nature  of  Mortgages.  A  mortgage,  as  defined  by 
Chancellor  Kent,  is  a  convej^ance  of  an  estate  by  way  of 
pledge  for  the  security  of  a  debt,  and  to  become  void  on  the 
payment  of  it.'  The  term  "  mortgage  "  has  a  technical  signifi- 
cation in  law,  and  when  used  in  legal  proceedings  as  descrip- 
tive of  a  written  instrument,  must  be  taken  and  construed 
according  to  its  technical  legal  import.      An   equity  of   re- 


'  4  Kent  Com.  136;  MarAnn  v. 
Titsworth,  10  Wis.  320;  Cooper  v. 
Whitney,  3  Hill,  95.  Any  instru- 
ment of    conveyance  that  on  its 


face  purports  to  be  given  to  secure 
a  payment,  is  merely  a  mortgage: 
Cowles  V.  Marble,  37  Mich.  158. 


(372) 


MOKTGAGES.  373 

demption  is  an  essential  ingredient  and  is  ahvays  im])lied, 
even  tliuu;^li  no  defeasance  is  expressed  in  the  instrument 
itself.'  A  mortgage,  in  form,  jnirports  to  convey  a  present 
legal  estate  to  the  mortgagee,  li.ible  to  be  defeated  only  by 
performance  of  stipulated  conditions,  and  so  it  was  long 
held  that  the  legal  effect  of  the  instrument  was  to  vest 
the  title  in  the  mortgagee,  subject  only  to  the  expressed 
condition  or  proviso,^  and  the  mortgagor's  right  to  regain 
his  estate,  after  condition  broken,  which  was  by  application 
to  a  court  of  chancery,  was  called  "  the  equity  of  redemp- 
tion." The  modern  doctrine  is,  however,  that  a  morto-ao-e 
is  but  a  lien  on  land,  by  way  of  security  for  the  debt,  the 
legal  title  remaining  in  the  mortgagor,  subject  only  to  the 
lien  of  the  mortgage  and  that  the  "equity  of  redemption" 
is  a  legal  right."  The  right  of  a  mortgagee  to  hold  tlie 
mortgaged  premises  as  security  for  his  debt  is  not  an  estate 
in  land  and  ])asses  only  1iy  an  assio-nment  of  tlie  del)t.^ 

§  2.  BiTiM-eiit  Kiiiils  of  Mortgages.  Conveyances  for  the 
security  of  a  debt  or  the  protection  of  creditors,  may  be  divided 
into  three  classes.  The  first  inchides  mortgages  properly  so 
called,  being  conveyances  from  debtor  to  creditor,  ex})ressed 
to  be  by  way  of  a  pledge  or  security  fur  the  payment  of  the 

'  Walton  r.  Cody,  1  WLs.  420;  gagee:  Johnson  v.  Houston.  17 
Peugh  V.  Davis.  96  U.  S.  332;  Wing  Mo.  227:  Fuller  v.  Eddy.  49  Vt.  11. 
t".  Cooper.  37  Vt.  1G9;  Beai-ss  v.  "Vason  v.  Ball,  50  Ga.  2GS; 
Ford,  10«  111.  16.  "  Once  a  mort-  Wing  v.  Cooper,  37  Vt.  109; 
gage,  always  a  mortgage,"  is  a  uni-  Fl<  tdier  v.  IIu!nie.s,  32  Ind.  497; 
versal  rule  in  e<iuity,  and  no  agi'ee-  Carpenter  v.  Boweii,  42  Miss.  'JN; 
nient  in  a  m)rtgage  to  change  it  Wo(j<l8  f.  Ili!del)rand,  46  Mo.  2S}; 
into  an  al->s<jlut!'  conveyance  upon  Astor  r.  Iloyt,  5  Wend.  602.  Tliin 
any  condition  or  event  whatever,  wa.s  originally  the  eipiitahle  doc- 
will  Ixi  allow  -1  Ui  prevail:  Clark  trine,  estaMisIifd  to  prevent  the 
V,  Henry,  2  Cow.  324,  hardships  sjiriiij^ini;  liy  the  rules  of 

*  Croft   r.  Hun.ster,    9   Wis.    503;  law   from   a   failure  in  the    strict 

Drayton  v.   M.n-shall,  1  Rice's  K<|.  i)erf(»rm;ince  of  th»'  conditions  at- 

(S.  C.)  373;  Stewart  r.   H.irrow,  7  taehed  to  the  conveyance,  and  t<i 

Bu.sh    (Ky.),    36y.     TIuh    doctrine  give  elfeet  to  the  just  intint  of  (he 

«till  prevails  in  a  few  SUat^-s,  and  in  parties  in  ••ontnicLs  of  (hisdcs  rip. 

u  nuidifled  form  in  others;  iLH,  after  tion,     Inil     lias     gnidually     Ix-ca 

condition  hnjkr'U  or  default,  the  je-  adopted  \>\  the  courts  of  law. 

gal  title  in  held  to  pai«  to  theniort-  *  .M.ick  v.  Wet/lar,  39  Cal    'J  17. 


3ri  ABbTKACTS    OF   TITLE. 

intlebtedness,  or  for  tlie  iiulcmiiification  of  the  grantee 
against  a  particular  loss,  and  containiiiii'  a  clause  of  defea- 
sance upon  the  performance  of  the  stii)ulated  conditions.' 
To  this  division  also  belongs  that  class  of  mortgage  securi- 
ties technically  known  as ''Trust  Deeds,"  wherein  the  debts 
ai'e  specilied  and  the  creditors  named  or  described,  but 
because  of  their  large  number,  or  to  allow  greater  freedom 
in  the  transfer  of  the  evidences  of  the  indel)tedness;  or  for 
other  circumstances  making  a  conveyance  directly  to  them 
less  convenient;  the  deed  is  made  to  a  mortgagee  who  com- 
bines the  office  of  trustee,  the  creditors  standing  in  the  posi- 
tion of  cestidsque  trust.'' 

The  second  division  consists  of  conveyances  which  are 
absolute  in  form,  but  being  intended  as  security  for  debt 
only,  courts  of  equity  will  give  effect  to  the  intention  of 
the  parties  whatever  be  the  form  of  the  conveyance,  and 
treat  same  as  a  mortgage,  except  as  against  the  rights  of 
honajide  purchasers  or  other  intervening  equities.'  These 
are  known  as  "  equitable  mortgages,"  and  being  usually  de- 
pendent on  undisclosed  intention,  are  to  be  treated  and  con- 
sidered in  the  abstract  only  according  to  the  manifest  legal 
import.  The  third  division  contemplates  all  deeds  of  trust 
or  assignments  for  the  payment  of  creditors  generally,'  the 
mortgagee  in  such  case  representing  the  rights  of  the  mort- 
gagor only.^  Mortgages  may  assume  a  variety  of  shapes 
and  their  identity  become  almost  concealed,  but  the  fact  of 
security  is  always  sufficient  to  furnish  an  indication  of  their 
true  character.' 

§  3.  The  Eiiuity  of  Redemption.  The  estate  remain- 
ing in  the  mortgagor  after  the  law  da}^  has  passed,  before 

'  Va-son  V.  BaU.  56  Ga.  268.  with  the  deed:    Ingle  v.   Culberfc- 

2  Hurley    v.    Estes,  6    Neb.   386;  son,  43  Iowa,  265. 

Turner  r.   Watkins,  31   Ark.  429.  ^^w^miv.  Mitchell,  15  Wis.  641; 

A  tiiist  deed  executed  to  secure  a  French    v.   Bums,  35    Conn.  359; 

debt  does  not  vest  in  the  tru^^tee  Shays  v.  Norton,  48  111.  100. 

the  legal  title  to  the  land,  which  "»  Bank  v.   Lanahan,  45  Md.  396. 

can  only  be  taken  away  from  the  *  Spackman    v.    Ott,   65  Pa.   St. 

grantor    by    foreclosure   or    other  131. 

legal  process  in  substantial  accord  *  A  penal  bond  to  reconvey  lands 


MORTGAGES. 


OtO 


foreclosure,  is  po]nilarly  but  erroneousl}'^  called  an  equity  of 
redemption,  retaining  the  name  it  had  when  the  legal  estate 
was  in  tlie  mortiragee,  and  the  right  to  redeem  existed  oidy 
in  equity.  Although  a  misnomer,  it  does  not  mislead.  The 
legal  estate  remains  in  the  mortgag(^r  and  is  subject  to 
dower  and  curtesy;  the  lien  of  judgments;  may  be  sold  on 
execution;  and  may  be  the  sul)ject  of  mortgage  and  sale, 
the  same  as  any  other  estate  in  lands,  while  the  mortgagee 
lias  but  a  lien  ujH)n  the  land  as  a  security  for  his  debt,  and 
the  same  is  not  liable  to  his  debts,  or  subject  to  any  of  the 
incidents  of  an  estate  in  lands.'  The  mortgagor  retains  and 
is  possessed  of  an  estate  in  the  land  in  virtue  of  liis  former 
and  original  right,  and  there  is  no  change  of  ownership.  So 
far  as  the  entire  estate  is  concerned,  there  is  but  one  title 
and  this  is  shared  between  tlie  morts-a^-or  and  mort«-afj:ee, 
the  one  being  the  general  owner  and  the  other  havino'  a  lien 
which,  u])on  a  foreclosure  of  the  right  to  redeem,  may  ripen 
into  an  absolute  title,  their  respective  parts,  when  united, 
constituting  one  title.'  The  possession  of  the  mortgaged 
premises  in  no  way  affects  the  right  of  the  one  to  redeem  or 


lias  been  held  to  be  a  mortgage : 
Rej-nolds  t-.  Scott,  Brayt.  (Vt.)  75. 
So  of  a  deed  with  a  bond  for  re- 
convej'ance  :  Wing  v.  Cooper,  37 
Vt.  199;  but  otherwise  upon  facts 
stated  :  Rich  v.  Doane,  30  Vt.  125. 
So  also  of  a  deed  with  astipulation 
that  title  shall  not  vest  until  the 
purchase  money  is  paid  :  Pugh  v. 
Holt,  27  Miss.  4G1.  And  generally 
any  conveyance  expressetl  to  be  to 
secure  a  payment :  Cowles  v.  Mar- 
ble, 37  Mirh.  15S;  Hearss  ?'.  Fnrd, 
IDM  III.  1<5;  Parks  v.  Hall,  2  Pick. 
(Ma»4.)211. 

'Odellr.  MontrosH,  08  N.  Y.  litf); 
2  W;Lsh.  Heal  Prop.  152;  CJurliam  u. 
Arnold.  22  Mich.  217;  White  r.  liit- 
tenmeyir,  30  Iowa,  20H.  Tliis  in 
the  general  doetrine,  yet  in  w)riio 
Statt*  it  u  btill  luld  that,  after  tho 


expiration  of  the  law  day,  the  mort- 
gagor or  one  occujiying  his  jiosition, 
Ls  considired  as  tenant  at  sulTerance 
of  the  mortgagee,  and  liable  to  be 
evicted  without  notice  to  quit. 
The  mortgagee,  in  such  case,  has  a 
right  of  entry  which  he  may  peace- 
ably assert  without  notice  and 
without  action;  or  he  may,  with  or 
without  notice  to  quit,  bring  i-ject- 
ment,  and  may  recover  iMjssession 
of  tlie  land  .'iniL  damagi^  for  u-se 
and  <tccupation  after  nutici'  to  <|uit, 
and  if  no  notice,  then  aft*r  tlie 
service  of  the  writ,  and  tiiis  eitiier 
against  tlie  mortgagor  or  his  lus- 
sigiiee  :  Ma-S4in  r.  (J ray,  -W  Vt.  311; 
Collaiiie  r.  Laiigdon.  2'J  Vt.  32; 
Welsh  V.  PhilliiM.  51  Ala.  :«>. 
•Udell  V.  Montross,  Ob  N.  V.  4W. 


3  t  G  ABSTRACTS  OF   TITLE. 

the  other  to  foreclose."  A  p;irty  taking  a  mortgage  on  hind 
pending  a  bill  to  foreclose  a  prior  mortgage  or  lien,  will  be 
bound  by  the  decree,  and  sale  made  in  the  pending  suit  the 
same  as  if  made  a  ]'arty  to  the  bill  to  foreclose,  and  will  be 
bound  to  redeem  from  such  sale  "within  the  period  allowed 
by  hnv.  If  he  fails  to  do  so  his  equity  of  redemption 
will  be  barred,''  and  his  rights  under  his  mortgage  will 
be  extinguished  and  lost. 

§  4.  lights  of  Mortgagor.  The  mortgagor,  iwssessing 
the  legal  as  well  as  the  equital)le  title,  may  perform  any 
valid  act  relative  to  the  pro})erty,  and  make  any  conti-act 
with  reference  to  the  title,  subject  to  the  lien  of  the  nioi-t- 
gage.  but  he  can,  it  seems,  do  no  act  which  shall  be  prejudicial 
to  his  mortgagee's  interests  or  essentially  change  the  legal 
character  of  the  land.  Hence,  no  dedication  to  public  use 
of  portions  of  a  parcel  of  land,  made  by  the  general  owner, 
after  giving  a  mortgage  upon  it,  can  affect  the  lien  of  the 
mortgage;  but  a  purchaser  at  a  sale  on  foreclosure  will  take 
title  free  of  the  dedication.' 

§  5.  Mortgages  as  Affected  by  Estoppel.  It  is  a  well 
settled  principle  of  law,  that,  ordinarily,  if  one  who  has  no 
title  to  lands,  nevertheless  makes  a  deed  of  conveyance,  with 
warranty,  and  afterward  himself  purchases  and  receives  the 
title,  the  same  will  vest  immediately  in  his  grantee,  who 
holds  his  deed  with  warranty  as  against  such  grantor  by 
estoppel.  In  such  case  the  estoppel  is  held  to  bind  the  land, 
and  create  an  interest  in  it.  The  grantor,  being  at  the  same 
time  the  warrantor  of  the  title  which  he  has  assumed  the 
right  to  convey,  will  not  be  heard  to  set  up  a  title  in  himself 
against  his  own  prior  grant,  nor  to  say  that  he  had  not  the 
title  at  the  date  of  the  conversance,  or  that  it  did  not  pass  to 
his  grantee  in  virtue  of  his  deed.*  The  doctrine  is  ecjually 
well  settled  that  the  estoppel  binds  not  only  the  parties,  but 

'  Parsons  v.Noggle,  23  Minn.  328.  ■•  Teft  v.  Munson,  57  N.  Y.  97; 

«  Pratt  V.  Pi-att,  96  lU.  184.  Work  v.  Wcllond,  13  N.  H.  389: 

•^  Hague  V.  West  Holwken,  23  N.  Jackson  v.  Bull,  1  Jolms.  Cas.  81; 

J.  Eq.  354;  Walker  v.  Sunimei-s,  9  White  v.  Patten,  24  Pick.  324;  Pike 

W.  Va.  533.  V.  Galvin,  29  Me.  183. 


MORTGAGES.  377 

all  privies,  ^'hctlicr  of  blood,  law,  or  estate; '  and  in  such 
case,  the  title  is  treated  as  having  been  previously  vested  in 
the  grantor,  and  as  having  passed  immediately  upon  the 
execution  of  his  deed,  by  way  of  estoppel.  So  where  a 
party  makes  a  mortgage  with  express  or  implied  warranty 
of  title,  he  thereby  becomes  estopped  from  disputing  that, 
at  the  date  of  the  mortgage,  he  hail  the  title  and  conveyed 
it;  and  this  estoppel  applies  equally  to  all  persons  to  whom 
such  party  may  make  subsequent  conveyances,  by  deed, 
after  he  has  obtained  a  title.  Such  subsequent  grantees  are  es- 
topped from  denving  that  the  original  grantor  had  title  to  the 
land  at  the  date  of  the  mortgage,  and  he  must,  therefore,  for 
every  purpose  as  against  his  grantees,  be  treated  as  having 
the  title  to  the  lard  at  that  date.*  Ko;  does  tliis  doctrine  at 
all  militate  against  the  rule,  that  the  record  of  a  convevance 
made  by  one  having  no  title  is,  ordinarily,  a  nullity,  and 
constructive  notice  to  no  one.  When  the  mortgage  is  in  the 
statutory  form  it  is  equivalent  to  one  containing  all  the 
covenants  of  title,  and  subsequently  acquired  titles  inure  to 
the  benefit  of  the  mortgagee.' 

§  G.  Merger.  One  of  the  most  perplexing  incidents  of 
title  that  can  come  to  the  notice  of  the  examiner  in  connec- 
tion with  m<jrtgages,  is  that  Avhich  forms  the  caption  to  this 
section,  and  as  it  is  impossible,  in  the  brief  limits  of  this 
work,  to  enter  into  any  extended  discussion  of  the  subject, 
only  passing  reference  can  be  made  to  it.  The  doctrine,  as 
formulated  by  the  earlier  decisi(jns  is,  that  whenever  a 
greater  and  a  less  estate  unite  in  the  same  j)erson,  without 
any  intermediate  estate,  the  lesser  is  merged,'  and  where  the 
legal  and  e(juitablc  estates  meet  and  unite  in  the  same  per- 
son without  an  intervening  interest  outstanding  in  a  third 
j)ei*son,  the  equitalih*  is  merged  in  the  legal  estate,  the  latter 
alone  subsisting.  Thus,  a  conveyance  by  the  mortgagor  to 
the  mortgjigec  extinguishes  the  mortgage.*     Later  decisions 

'  T«-ft  I'.  Munson,  r,7  N.  Y.  1)7.  »  KIdor  v.  Derliy,  08  III.  22M. 

'  Tt-ft  V.    Mun.s<m.  .17   N.  Y.  »7;  *  Jackhon  v.  UoWrin,  1  W'vn.  ITH; 

White   V.    PalUii.   24    Pick.    821;  Jjuiu-h  r.  Mon-y,  2  Cow.  2lfl. 

Kl.lur  V.  I)<-rliy.  »S  III.  22H;  K.  A  M.  •  Jatkson  v.  Ikvilt.  CCuw.  310. 

It.  u.  Co.  V.  TriLU  Co.,  ly  III.  aai. 


378  ABSTKACTS    OF   TITLE. 

liave  greatly  modified  this  rule  and  it  is  now  held,  that  where 
two  estates  meet  as  above  described,  a  merger  does  not  nec- 
essarily follow,  but  will  depend  upon  the  intent  and  interest 
of  the  parties,  and  where  it  becomes  necessary  to  advance 
the  ends  of  justice,  the  two  estates  will  be  kept  separate; 
thus,  a  deed  from  a  mortgagor  to  a  mortgagee,  intentled  as 
additional  security  only,  and  not  as  a  satisfaction  of  the 
mortgage,  will  not  merge  the  mortgage  in  the  greater  estate 
so  as  to  give  priority  to  another  mortgage  which  is  a  second 
lien.'  So,  also  in  the  absence  of  a  special  agreement  to  that 
effect,  the  taking  of  a  new  mortgage,  from  the  same  party 
and  on  the  same  property,  will  not  merge  or  extinguish  a 
prior  one.'  The  rule,  as  first  stated,  though  "  inflexi])le  at 
law,"  is  in  equity  controlled  by  the  express  or  implied  inten- 
tion of  the  party  in  whom  the  interests  or  estates  unite,  and 
the  mortgage  interest  will  in  equity  be  held  to  have  merged 
the  fee,  or  otlierwise,  according  to  the  actual  or  presumed 
intention  of  the  mortgagee.*  AVith  respect  to  merger  no 
general  rule  can  be  laid  down,  for  the  question  will  depend 
in  each  case  upon  the  interests  and  intent  of  the  parties,  and 
the  demands  of  justice  and  equity."  The  most  rigid  investi- 
gation must  be  made  by  counsel  wherever  an  apparent  mer- 
ger occurs  in  the  title,  as  the  record  does  not  impart  notice 
of  merger,  or  of  any  other  fact  Avhich  depends  alone  on  the 
intention  of  the  parties,  or  other  extrinsic  evidence,  and  if 
any  one  takes  a  conveyance  upon  the  assumption  that  a  for- 

'  Huebsch  v.  SchnoU,  81  111.  281.  gage,   afterward,     through  mesne 

^  Christian  v.  Newberry,   61  Mo.  conveyances,   obtains  title    to  the 

446.  land,   he  thereby  becomes  vested 

3  Aiken  v.  R.  R.  Co.,  37  Wis.  409;  with  the  estates  of  both  mortgagor 

Moi'gan  V.  Hammet,  34  Wis.  512;  and  mortgagee;  the  owner  of  the 

Powell  V.  Smith,  30  Mich.  451 ;  Wa-  mortgage  having  acquired  the  pri- 

torloo  Bank  v.  Elmore,   5ii  Iowa,  mary  fund  for  its  payment,  wliich 

541;  Tower  r.  Divine,  37  Mich.  443.  is  of  value  equal  to  the  mortgage, 

*  Franklj-n  v.  Hay  ward,  61  How.  he  thereby  occupies  the  position  of 
Pr.  (N.  Y.)  43.  Where  a  mortgagor  one  who  has  effected  a  strict  fore- 
sells  the  mortgaged  premises,  sub-  closure,  and  the  mortgage  debt 
ject  to  the  mortgage,  and  a  third  must  be  regarded  as  paid:  Lilly  u. 
partj',  having  purchased  the  mort-  Palmer,  51  111.  331. 


MORTGAGES.  379 

mer  mortgage  to  his  grantor  has  been  merged  in  a  subse- 
quent conveyance  of  the  fee,  he  does  so  at  his  peril.* 

§  7.  Eiiuitable  Mortgages.  It  is  an  established  doctrine 
that  a  court  of  equity  will  treat  a  deed,  absolute  in  form, 
as  a  mortgage  when  it  is  executed  as  security  for  a  loan  of 
money,  for  the  court  looks  beyond  the  terms  of  the  instru- 
ment to  the  real  transaction,  and  when  that  is  shown  to  be 
one  of  security,  and  not  of  sale,  it  will  give  effect  to  the 
actual  contract  of  the  parties.'  Such  a  deed  carries  with  it 
all  the  incidents  of  a  mortgage,  and  the  rights  and  obliga- 
tions of  the  parties  to  the  instrument  are  the  same  as  if  it 
had  been  subject  to  a  defeasance  expressed  in  the  body 
thereof,  or  executed  simultaneously  with  it.'  It  is  a  further 
established  doctrine  that  an- equity  of  redemption  is  insep- 
arably connected  with  a  mortgage;  that  is  to  say,  so  long 
as  the  instrument  is  one  of  security  the  borrower  has  in  a 
court  of  e(]uity  a  right  to  redeem  the  property  ui)on  pay- 
ment of  tlie  loan,  and  this  right  can  not  be  waived  or  aban- 
doned by  any  stipulation  of  the  parties  made  at  the  time, 
even  if  embodied  in  the  mortgage.  This  is  a  doctrine  from 
which  a  court  of  equity  never  deviates.  "Its  maintenaiice 
is  deemed  essential  to  the  protection  of  the  debtor,  who, 
under  pressing  necessities,  will  often  submit  to  ruinous 
conditions,  expecting  or  hoping  to  be  able  to  rejiay  the  loan 
at  its  maturity  and  thus  prevent  the  conditions  from  being 
enforced   and    tlie   property  sacrificed."  *     In  view  of  these 

'  Or.  &  AVjLsli.  Trust  Co.  I'.  Shaw,  applicil  for  the  n-asoii.  that  such 

5  Sawyer,  JWO.  evidence  is  received  not  to  contra- 

'  Peugh  V.  Davis,   90  U.S.    332;  diet  an  instruinentof  writiuK,  I'Ut 

Klein  V.   McNaniara,  54   Miss.  J»0;  Ui  prove  an   equity  8ui)erior  to  it: 

Carr  t'.Carr,  52  N.  Y.  2r)l;  Shays  u.  Saunders  v.  Stewart.  7   Nov.  200; 

Norton.  48  111.  100;  Turner  v.  Kerr,  Wilcox  v.  Bati"H,  20  Wis.  405. 

44  Mo.  429;  Moore  v.  Wade,  8  Kan.  »  Odell  v.  Montrose.  08  N.  Y.  499. 

a^^O;  Kerr  r.  Aj,'ard,   24  Wis.  378.  *  Field.  J.,  in  Teu^'h  v.  Davis,  90 

The  nde  tliat  parol  pr<K)f  is  a<linis-  U.  S.  332;  Clark  r.  Ileiuy,  2  Cow. 

siltle  t<»  show  tliat  a  conveyance  of  824;   and   see   Walton    j'.    ('(nly,    1 

real  r-Htat<',  al»s<)lut<'  ufMin  itis  face?.  Wis.   420;  BcuraB  V.   lord,  lUb  III. 

w!is   intended  to  )n'  a  niortj^a^^e  or  10. 
B«jcurily  nnniy,  i^  recognized   and 


3S0  ABSTRACTS   OF   TITLE. 

statements  how  is  the  examiner  or  counsel  to  determine,  on 
]>crusal  of  the  abstract,  what  are  and  what  are  not  mort- 
gages, since  all  the  instruments  appear  absolute  on  their  face  ? 
lie  can  not.  The  legal  imi)ort  of  an  absolute  conveyance 
is  that  it  carries  the  fes,'  and  any  contradiction  of  its  appar- 
ent effect  must  arise  from  extrinsic  e\adence.  This  counsel 
can  not,  nor  is  he  expected  to  know.  The  record  rarely  fur- 
nishes any  clue  to  the  true  character  of  this  class  of  convey- 
ances, the  facts  governing  their  equital)le  nature  resting 
entirely  in  parol,  hence  questions  of  this  character  can  seldom 
arise  in  the  preparation  of  abstracts  and  only  incidentally 
in  passing  upon  titles.  The  examiner  can  only  judge  of  tlie 
legal  sufficiency  and  effect  of  instruments  as  they  are  pre- 
sented on  the  record."  Subsequent  purchasers  for  value, 
without  notice,  will  be  protected  by  the  record,  and  where 
one  in  possession  of  land,  under  a  convej^ance  absolute  on 
its  face,  sells  the  same,  his  grantee,  without  notice  that  his 
vendor's  deed  was  but  a  mortgage,  will  hold  the  property 
free  from  any  equity  of  redemption,'  and  even  though  a 
court  of  equity  afterward  decides  that  the  conveyance  was 
only  a  mortgage,  and  the  mortgagor  was  entitled  to  his 
equity  of  redemption,  the  title  to  the  property  will  not  be 
disturbed,  but  judgment  in  personam  will  be  given  against 
the  mortgagee  for  the  amount  equitably  due  by  him  to  the 

'  A  conveyance  of  the  legal  title  v.  Trumbull,  50  Pa.  St.  509;  Sliaw 
to  secure  the  payment  of  money  v.  AViltshirf^  05  Me.  485.     This  re- 
differs  from  a  statutory  mortgage  suit  always  follows  if  the  instru- 
in  that  the  legal  title  passes  to  the  ment  be  recorded  in  the  record  of 
grantee,  the  gi-antor  reserving  the  deeds  and  not  of  mortgages:  Brown 
right  in  equity   to  redeem.     This  v.  Dean,  3  Wend.  (N.  Y.)  208. 
right,  however,  may  become  barred  ^  It  is  the  settled  policy  of  the 
by  the  statute  of  limitations,  and  law  to  give  security  to,  and  confi- 
when  so  barred  that  an  action  for  dence  in,  titles  to  the  landed  es- 
afSrmative  relief  can  not  be  main-  tates  of  the  country  which  appear 
tained  thereon,  it  can  not  be  inter-  of  record   to  be  good:    McVey  v. 
posed  as  a  defense  to  an  action  by  McQuality,  97  111.  93. 
the  grantee  to  recover  possession  'Jenkins  u.  Rosenburg,   105   111. 
of  the  property:  Richards  v.  Craw-  157. 
ford,  50  Iowa,  494.     See,  Edwards 


MORTGAGES.  oSl 

mort linger.'  Where  a  lien  on  land  is  expressly  reserved  in 
the  deed  conveying  same,  which  is  duly  recorded,  a  clear 
equitable  mortgage  is  created  of  which  every  one  is  bound 
to  take  notice;'  but  something  more  than  a  mere  reserva- 
tion of  a  right  to  purchase,  or  covenant  to  reconvey  must  be 
shown  in  order  to  convert  a  deed  absolute  on  its  face  into  a 
mortgage."  There  is  no  positive  rule  tliat  the  covenant  to 
reconvey  shall  be  regarded,  either  in  law  or  equity,  as  a 
defeasance.  The  owner  or  lands  may  be  willing  to  sell  at 
the  price  agreed  upon,  and  the  purchaser  may  also  be  will- 
ing to  give  the  vendor  the  right  to  repurchase,  upon  speci- 
iied  terms.  Such  a  contract  is  not  o])posed  to  public  policy, 
nor  is  it  in  any  sense  illegal.'  Equitable  mortgages  arising 
from  the  dejwsit  of  title  deeds  are  notgenerall}'  recognized,' 
and  the  doctrine  can  not  be  said  to  prevail  in  this  country. 
§  8.  Vendor's  Liens.  It  has  long  been  settled  that  the 
vendor  of  real  estate,  notwithstaniUng  he  has  conveyed  the 
legal  title,  has  a  lien  on  such  estate  for  the  unpaid  purchase 
money  wliile  it  remains  in  the  hands  of  the  vendee,  or  vol- 
unteers or  ])urclia>:ers  with  notice.  This,  however,  ajiiilies 
mainly  to  imj)lied  liens,  for  where  there  is  a  distinct  reser- 
vation upon  the  face  of  the  deed  of  sucli  lien,  it  has  been  held 
to  constitute  a  specilic  cliarge  upon  the  land  as  valid   and 

'  Baugher  v.  Morrynian,  32  Md.  Drumniond,  5  Mass.  321).  So  if  it  be 

186;  Jackson  u.  McChesney,  7  Cow.  for  the  performance  of    any  other 

360;  Grimstone  v.  Carter,  3  Paige,  duty,  such  as  maintenance  nf  the 

421.  grantor    during    life,    etc.:    Lan- 

'  Davis  V.  Hamilton,  50  Miss.  213;  fair  v.  Lanfair,  18  Pick.  (Mass.)  291). 

Arinentroufs   E.vr.   r.  Cibljous,  30  'But  see   IVterson  v.  Clark,   15 

Cratt.  (Va.)  052;  Dingley  v.  Bank,  Johns.  (N.  Y.)  205. 

57  Cal.  467;  as  where  a  deed  con-  Mlanford  v.  Blessing,  80  III.  188; 

tains  a    stipulation   that  no  title  Hcnly  r.   IIot4iling,     41    Cal.    22; 

shall     vest     until     the     pur(ha.se  Clover  v.  Payn,  19  Wi-nd.  518. 

money    has  Ix-en    paid  (Pugh    v.  '  I'rohasco  v.  Johnson,  2   Disney 

Holt,    27    MiHs.     401;    Austin    v.  (Ohio).     96.     The    registry     of    n 

Downer,    25  Vt.    558),  or  that  tlic  mortgage  is  a  suhstitute   for   the 

de«><|  shall  he  alfsolut^.*  on  the  [tay-  (hposit  of  the  titif  di-cds:  Johnson 

niciit  of  ccrtjiin    not^-w,  hut   in  <h>-  v.  SUigg,  2  Juhna.  51U. 
fault  thereof  to  be  void    (Bank  v. 


3S2  AnSTRACTS    OF   TITLE. 

efTcctual  as  a  deed  of  trust  or  mortgage,'  and  further  that 
the  lieu  being  set  forth  in  the  very  lirst  link  of  the  vendee's 
clami  of  title,  purchasers  from  him  have  just  as  much  notice 
of  it  as  they  would  have  had  of  a  lien  on  the  land  by  mort- 
gage or  trust  deed.'  "  Indeed,"  says  Staples,  J.,  "  it  may  be 
a  question  whether  a  reserved  lien  is  not  of  a  higher  nature 
than  a  mere  mortgage  security.  In  many  cases  the  mort- 
gage is  treated  as  a  mere  incident  to  the  debt,  whereas  the 
lien  reserved  is  an  express  charge  inherent  in  its  nature  upon 
the  land  which,  in  equity,  is  the  natural  primary  fund  for 
its  payment." ' 

§  9.  Mortgages  Proper.  A  mortgage  may  be  made  by 
an  absolute  conveyance  with  a  defeasance  back,  but  this 
form  has  never  been  in  general  use  in  the  United  States, 
and  is  now  obsolete.  The  class  of  conveyances  to  which 
this  name  is  technically  applied  consists  of  an  instrument 
in  form  purporting  to  convey  a  present  estate  to  the  mort- 
gagee, liable  to  be  defeated  by  the  performance  of  stipu- 
lated conditions,  and  is  always  between  the  principals  to 
the  transaction.  AVhere  the  mortgage  remains  a  valid  and 
subsisting  lien,  it  is  advisable  to  narrate  same  quite  fully, 
and  when  followed  by  foreclosure,  if  other  than  by  suit  in 
chancery,  to  relate  with  minuteness  of  detail  the  power  of 
sale  and  other  provisions,  by  authority  of  which  foreclosure 
was  made.  Where  the  mortgage  has  been  fully  paid,  satisfied 
and  discharged,  there  exists  no  good  reason  Avhy  it  should 
appear  at  all,  any  more  than  a  judgment  which  has  been 
satisfied;  yet  it  is  the  universal  custcm  of  abstract  makers 
to  show,  in  the  regular  course  of  title,  both  the  mortgage,  sub- 
sequent assignments,  if  any,  and  the  discharge.  Questions 
mav,  however,  sometimes  arise  that  render  an  abstract  of 
satisfied  liens  convenient  or  material,  yet  as  a  rule,  only 
the  briefest  outline  should  be  presented,  sufficient  to  show 
the  transaction  and  no  more,  that  confusion  may  not  result 

'  Armentrout's  Ex'rs  v.  Gibbons,  443:   Hincs  v.  Perkins,   2  Heisk. 

80  Gratt.  (Va.)  632;  Cai-penter  v.  (Tenn.)  395. 

Mitchell,  54  111.  126.  'Coles  v.  Withers,  10  Reporter, 

«Patton  V.  Hoge,  22  Gratt.  (Va.)  475. 


MORTGAGES.  3S3 

from  the  minoHng  of  satisfied  and  unsatisfied  liens.  An 
unsatisfied,  unforeelosed  mortgage  may  be  sufiiciently  pre- 
sented as  follows: 

Bichard  Thompson  arid  "]  3fnr{gaqe. 

£lvi)'a,  his  wife,  \  Dated  May  1,  ISSO. 

to  I  Jiecorded  May  £^  18S0. 

Mortimer  Giddings.  J  Book  590,  jpg.  253. 

To  secure  the  payment  of 
$500.00  in  one  year  from  the  date  hereof^  evidenced  hy  said 
Bichard  Thompsoii's  one  promissory  note  of  even  date  here- 
with.' 

Conveys  land  in  Brown  County,  Ills.,  descinbed  as  lot  one, 
in  Hock  one,  of  the  Village  of  Cherry  Vale,  being  part  of 
the  northeast  quarter  of  section  ten,  toiim  one  north,  of  range 
iive  east. 

Power  of  sale  given  on  default  after  thirty  days  notice.* 

Iloinestead  rights  loaived. 

Acknowledged  May  1,  ISSO. 

The  above  sufficiently  designates  tlie  character  and  cfTect 
of  an  ordinary  mortgage  between  individuals  before  default 
or  foreclosure,  or  if  followed  by  foreclosure  in  equity.  "When 
foreclosed  by  advertisement,  if  the  mortgagee's  deed  is 
shown  in  the  same  examination,  instead  of  the  reference  to 
the  power  of  sale  above  given,  set  out  the  entire  clause  and 
accompanying  conditions.  When  a  foreclosure  follows  a 
mortgage  shown  in  a  former  examination,  or  oiu^  apjtcaring 
])rior  to  the  commencement  of  the  scai-ch,  a  note,  ciiilnMlying 
the  power  of  sale,  should  be  apjiendcd  to  the  nu)rtgagee's 

'It   Ls  the  universal   rustotn   to  tion   to   pay   tlic  Tiioiioy  ■will   not 

witn<fi.s  tliu  oljli^ation  of  payinriit  make  the  instrument  any  less  ilFt'it- 

hy  a  lx>n<l  or  jiroinissory  note,  tlio  u.il  a.s  a    inort;^aKt',   providefl,  of 

niortf^aK'-'  Hiinply  stipulatin};  tliat  coui-Ke,    tliat   tlio   mortgagor    had 

if  the  money  Im?  paid  hy  the  day  the  money. 

named,   the   mortgage   an   well  x\»  'When  followed  hy   foi-eelosiiro 

the  uhligation  shall  In*  void;  hut  it  under  the  |M)wer,  Met  out  the  ternm 

may  often  ha|>|M'n  that  no  Heparate  tln-n-of  fully.     Ki-i' the  i-\amp!e  of 

ohiigation  in  taken,  an<l  the  ah>*en<"o  foredoHuru  of  Iruat  deed, 
of  a  Ujnd  or  otln.'r  express  ohliga- 


384  ABSTRACTS    OF   TITLE. 

deed,  in  the  same  manner  as  the  exanii)lo  given  of  a  trustee's 
deed,  to  which  the  reader  is  referred.  AVhere  the  mortgage 
is  given  by  a  corporation,  married  woman,  person  under 
guardianshij)  or  other  disability,  a  greater  degree  of  detail 
is  of  course  required,  and  all  special  matter,  relating  to 
capacity,  power  to  act,  character  of  parties,  etc.,  should  be 
sliown  as  in  cases  of  absolute  conveyance  by  deed.  So,  also, 
unusual  clauses,  conditions,  stipulations  or  covenants,  tend- 
ing to  shed  light  on  the  transaction,  or  to  limit  or  define 
the  nature  of  the  lien  or  security  given,  must  in  like  manner 
be  spccilieally  shown.  The  example  given  in  tliis  section  is 
to  be  considered  rather  as  a  suggestion  than  as  a  form 
as  are  many  other  examj)les  in  this  book,  and  wherever 
any  of  the  above  mentioned  incidents  occur  thev  should  find 
appropriate  mention.  A  mortgage,  after  judicial  foreclosure, 
although  in  some  sense  merged  in  the  decree,  remains  a 
muniment  of  title  which  passes  to  the  purchaser  at  the  mort- 
gage sale,  to  be  looked  to,  not  onl}^  for  the  purpose  of  ascer- 
taining the  time  at  which  the  mortgage  lien  attached,  but 
also  (in  the  absence  of  express  directions  in  the  decree  limit- 
ing the  estate  to  be  sold)  the  estate  conveyed  by  way  of 
mortgage.' 

§  10.  statutory  Forms.  As  in  case  of  deeds,  statutory 
forms  for  mortgages  are  now  prescribed  in  many  States,  but 
like  deeds,  from  their  meagerness  of  detail,  have  not  come  into 
very  general  use.  The  statutory  words  of  conveyance  and 
pledge  are  "  mortgage  and  warrant "  and  in  all  abstracts  of 
such  mortgages  the  words  should  be  inserted  as  they  appear 
in  the  original.  The  word  "  mortgages  "  is  sufficient,  under 
the  statute,  to  create  a  mortgage  in  fee,  while  the  addition 
of  the  words  "  and  warrants  "  carries  the  legal  import  and 
effect  of  full  covenants  of  seizin,  right  to  convey,  freedom 
from  incumbrances,  quiet  enjoyment  and  general  warranty. 

§  11.  Uncertainty  or  Error  of  Description.  The  obser- 
vations heretofore  made '  in  regard  to  uncertain  or  erroneous 
descriptions  in  deeds  are  all  a})})lica)jle  to  mortgages,  for  the 

'  Vallejo  Land  Assoc,  v.  Viera,  'See    "Errors.    Omissions    and 

48  Cal.  572.  Defects,"  page  183. 


MORTGAGES.  3S5 

policy  of  the  law  requires  that  they  give  definite  information, 
not  only  as  to  the  debt  secured,  but  as  to  the  property 
niorto-aged  as  "well.'  Material  emissions,  or  even  misde- 
scription, will  not  invaliilate  the  instrument,  where  other 
adequate  elements  of  identification  exist,'  but  ])urchasers 
without  notice  will  be  b<jund  oidy  by  the  description  fur- 
nished by  the  mortgage/ 

§12.  Covenants  ill  Mortgages.  As  mortgages  are  now 
drawn,  personal  covenants  are  not  usually  inserted,  but 
whenever  they  are  inserted  they  have  the  same  opeiation  as 
in  deeds  of  bargain  and  sale.  A  brief  allusion  to  the  cove- 
nants of  a  mortgage  may  be  profitably  made,  and  Avhere  the 
words  of  grant  which  imply  covenants  are  empl()3'ed,  and  no 
express  covenants  are  inserted  in  the  instrument,  such  words 
should  alwaA's  be  stated  as  in  case  of  deeds.  Tiie  words 
''  grant,  bargain  and  sell"  are  sulTicient  to  create  an  esto})- 
pel,  and  any  subsequent  interest  the  mortgagor  may  acipiire 
in  and  to  the  mortgaged  premises,  will  pass  by  the  moi't- 
gage  or  any  sale  tliat  may  be  made  pursuant  to  its  terms.* 
It  is  a  rule,  however,  in  ordinary  cases  of  foreclosure,  that 
the  title  ordered  to  be  sold  is  only  the  title  which  w;;s 
held  by  the  mortgagor  at  the  date  of  the  mortgage,"  and 
when  a  mortgage  containing  no  covenant  of  warranty 
has  been  foreclosed,  and  the  relation  of  mortgagor  and 
mortgagee  extinguished  by  a  sale  of  the  mortgaged  prna- 
ises,  the  former  is  under  no  duty  to  protect  the  title  of 
the  purcliaser,  nor  is  he  precluded  from  subse(jutM)tly  ac- 
(juiiing  and  claiming  under  an  outstanding  and  itai-amount 
title.'  "The  j)urcliaser  is  ])resuiMed  to  know  the  conditions 
of  the  title  which  lie  purchases,"  says  Andrews,  .1.,  "  and  if 
it  is  defective  his  bid  is  regulated  in  view  of  such  defect.    If 

'  Ilcnnan  v.  Dciiiin;^,   41  Conn.  *  Di.s<|U(' t'.  Wri|,'Iit,  10  Iowa,  TillS; 

121;  Siiiim«»iis  v.   Fuller,  17  Minn.  Riniriioiis  r.  FuIIit,  17  Minn.  IM-'i. 

4H.j;  Galaway  v.   Mal<lu)U,  Tt  Ni-I».  MJiMxtnu  r.  lloa;;,  K.'i  111.  l.';  Ti-ft 

2H.");  Murjtliy  r.  lliinlricks,  .'>7  Iiul.  v.  Miuis<in,  ^u  N.  Y.  1)7. 

Cy;}.  'Kniclihaiiin  r.  M.  U-iii,  10    ( 'jil. 

»  SlatiT  V.  nrtH-Kc.  30  Mi<li.  77;  r,\. 

Boon  V.  ricTiKjnt,  2»  N.  J.  l-:<i.  7.  ♦  Ja.kH.,ii  r.  Liltdl,  r,0  N.  Y.  WS, 

20 


3^6  ABSTRACTS    OF   TITLE. 

the  promises  bring  enough  to  satisfy  the  mortgage  debt  it 
would  be  inequitable  to  allow  him  to  claim  an  interest  sub- 
sequently acquired  by  the  mortgagor,  and  which  he  did  not 
])urciiase  and  was  no  part  of  the  consideration  of  the  sale. 
If  there  is  a  deficiency,  that  becomes  a  personal  charge 
against  the  party  bound  to  pay  the  dc])t,  in  favor  of  the 
creditor.  DilFerent  considerations  would  apply  Avhen  the 
mort<2-ao;e  contained  covenants  of  warranty.  In  that  case 
the  consideration  paid  would  re]iresent  the  value  of  the  land 
as  warranted,  and  the  mortgagor  wouhl  be  estop])ed  from 
setting  up  an  after  acquired  title,  against  which  he  cove- 
nanted in  the  mortgage." ' 

§  13.  Effect  of  Special  Covenants.  In  addition  to  the 
ordinary  covenants  of  title  and  warranty,  a  series  of  s])ecial 
covenants  are  found  in  mortgages  which  often  do  not  directly 
affect  title.  These  covenants  are  sometimes  annexed  to 
conditions  and  stipulations,  but  may  be  separate  from  them 
and  from  the  subject  to  which  the  stipulations  allude.  Of 
this  nature  is  the  covenant  to  keep  the  mortgaged  premises 
insured  for  the  benefit  of  the  mortirafj-ee.  Such  a  covenant 
creates  a  specific  equitable  lien  upon  the  insi  ran  e  money, 
Avhich  is  valid  as  against  the  creditors  of  the  mortgagor. 
The  mortgage  being  recorded,  the  covenant  acts  upon  the 
insurance  as  soon  as  affected,  runs  with  the  land,  and  fur- 
nishes notice  to  third  persons;  and  no  subsequent  assignment 
or  other  act  can  affect  the  rights  of  the  mortgagee.  It  is 
not  necessary  that  the  policies  be  assigned,  nor  that  the 
mortgagee  select  the  companies,  and  any  acts  of  the  mort- 
gagor without  the  consent  of  the  mortgagee  w^ill  not  defeat 
the  effect  of  the  covenant." 

§  14.  Special  Stipulations  and  Conditions.  Many  mort- 
gagees insist  upon  a  number  of  special  stipulations  and  con- 
ditions in  mortgages  accepted  by  them,  and  frequently  they 
are  of  such  a  nature  that  they  can  not  be  consistently  passed 

'  Jackson  v.  Littell,  50  N.  Y.  108.  Biss.  175.    In  this  matter,  theques- 

And  see,   Vallejo  Land  Assoc,  v.  tion  was  raised  by  the  assignee  in 

Viera,  48  Cal.  572.  bankruptcy  of  the  mortgagor. 

*  In  Ee  Sands'  Ale  Brewing  Co.,  3 


MORTGAGES.  3S7 

bj  the  examiner  without  notice.  The  stipuhition  for  insur- 
ance for  the  mortgagee's  benefit,  being  intended  to  afford 
securitvsupplemcntarv  to  and  connected  with  thcmort«i-ao-e, 
and  to  keep  the  mortgaged  property  itself  so  far  intact  as  a 
means  of  security  as  to  perpetuate  the  safety  of  the  mortga- 
gee's interest  in  case  the  buildings  should  burn,  is  in  equity 
a  sort  of  adjunct  to  the  mortgage,  and  is  binding  on  the 
mortgagor  and  all  others  who  may  succeed  to  his  riglits  with 
notice.'  The  stipulation  that  in  case  of  a  default  in  the  pa  v- 
ment  of  interest  the  principal  shall  immediately  become  due 
and  payable,  and  that  the  mortgagee  may  immediately  pro- 
ceed to  foreclose,  is  an  essential  part  of  the  contract  and  mav 
be  enforced,"  and  the  same  rule  applies  to  tlie  similar  stipu- 
lation relative  to  the  non-payment  of  taxes.'  A  stipulation, 
whereby  the  mortgagee  assumes  and  agrees  to  pay  a  prior 
mortgage  on  the  premises,  does  not  impose  upon  the  mort- 
gagee a  personal  liability  for  the  prior  mortgage  debt,  which 
can  be  enforced  against  him  by  the  prior  mortgagee,  for  the 
stipulation  in  such  cases  is  not  a  promise  made  by  the  mort- 
gagee to  the  mortgagor  for  the  benefit  of  the  prior  mortga- 
gee, but  is  a  promise  for  the  benefit  of  the  mortgagor  only; 
it  is  to  protect  his  property  by  advancing  money  to  ])av  his 
debt.*  In  this  resi>ect  it  differs  from  a  similar  stii)ul;ition 
contained  in  an  absolute  conveyance.  All  stipulations  which 
are  essential  parts  of  the  contract,  or  which  tend  to  induce 
foreclosure  befr»re  the  expressed  time  of  the  maturitvof  the 
debt,  particularly  when  the  mortgage  contains  a  power  <»f 
sale  by  advertisement,  should  bo  stated  or  dclinitelv 
alluded  to. 

§  15.     Effect  of  Informality  ill  Mortgages.    ^Mortgages, 
or  conveyances  by  way  of  sec-urity  in  the  natun;  of  mort- 

'  yUW-T  V.  Alrlri  -h,  31  Micli.  40S.  Meyer   v.   firaelKT.  19    Kan.     IC.-,: 

A  failun-  in  this  rcsjMT-t  ((iMstitittcs  Cook  v.  CMarIt,  08  N.   Y.  M^. 

BU'li  a  default  an  will  justify  the  *StiUiclifLs  t?.    Norton,    11    Kan. 

niort;^a;^Wi    in    wilin;;;    under    the  218. 

p<jwer  in  the  mortgage:  Walker  i'.  'CJarnsi^y   v.    Rop-rs,   47  N.   Y. 

Ctjckey,  38  Md.  V).  233.     Tin-  winie  rule  appIii-H   to   a 

'Gulden  V.  O'Ryrnf,  7  Pliil.  (Pa.)  deed   «l»Hohit4<  on  i^*  fare.  hut.  in 

93;  M.ilconi  V.  Allen,  19  N.  Y.  418;  fact,  intendetl  its  a  mortgage. 


3SS  ABSTRACTS    OF   TITLE. 

irrtLTCs,  are  sckloni  void  for  infoniuilitv  unless  the  informal- 
ity  or  omission  goes  to  the  groundwork  of  the  instrument, 
and  a  mortgage  or  trust  deed,  otherwise  complete  but  lack- 
ing in  some  formal  particular,  though  it  may  be  denied 
li'gal  effect,  will  be  enforced  in  equity  as  an  equitable  mort- 
«>a '-e,  and  this  protection  will  extend  to  the  assiii-nee  as  well 
as  to  the  original  mortgagee.'  This  rule  has  been  held  to 
api^ly  in  case  of  a  trust  deed  which  omitted  the  name  of  the 
trustee; "  and  to  a  mortgage  which  did  not  express  to  be 
sealed;'  and  where  the  seal  had  been  omitted;*  where 
the  instrument  was  imperfectly  witnessed,  as  where  there 
was  but  one  witness,  and  the  statute  required  two; '  to 
imperfectly  acknowledged  instruments;'  and  even  to  the 
want  of  an  acknowledgment.^  "Whenever  a  mortgage 
is  sufficient  as  between  the  parties  it  will  affect  all  third 
parties  who  have  actual  knowledge  or  notice  of  its  exist- 
ence,* and  purchasers  with  such  notice  will  take  subject  to 
the  equities  created  by  such  defective  mortgage.' 

§  16.  Purchase  Money  Mortg.ages.  A  mortgage  ex- 
pressed to  be  for  the  whole  or  a  part  of  the  purchase  money 
of  the  mortgaged  property  should  be  so  stated  in  the  alj- 
stract,  as  such  mortgages  stand  upon  a  some\vhat  different 
footing  from  other  conveyances  by  way  of  security.  The 
peculiar  qualities  of  a  purchase  money  mortgage  are  derived 
from  statutes,  under  which  it  becomes  a  lien  upon  the  entire 
estate  of  the  mortgagor  in  the  land,  freed  from  any  con- 
tingent claim  of  the  wife,  whether  she  be  a  party  to  the 
mort^Tage  or  not; '"  neither  will  she  be  a  necessary  party  to  a 
suit  tor  foreclosure  of  a  purchase  money  mortgage,  in  the 

'  McQuie  V.  Peay,  58  Mo.  5G;  Uc-  « Ilaskill  v.  Sevier,  25  Ark.  152; 

Clurg  V.  Phmip3/49  Mo.  315.  Zei:,^ler  v.  Hughes,  55  111.  288. 

« McQuie  V.  Peay,  58  Mo.  56.  ">  Black  v.  Gregg,  58  Mo.  565. 

» Jones  V.  Brewer,  58  Me.  210.  « Gardner  v.  Moore,  51  Ga.  2C8; 

*  Harrington  v.  Fortner,  58  Mo.  Sanljorn  v.    Robinson,   54  N.    H. 

468;   Van   Riswick  v.  Goodhue,  50  239;  Wilson r.  Reuter,  29  Iowa,  176. 

Md.  57.  9  Gardner  v.  Moore,  51  Ga.  268. 

» Gardner  v.  Moore,  51   Ga.   268;  '"  Fivtclier  r.  Holmes.  32  Ind.  497; 

Sanborn    v.   Robinson,    54  N.   H.  Anipldet  r.  Hibbard,  29  Mich.  298; 

239.  Thompson  v.  Lyman,  23  Wis.  206. 


MORTGAGES.  3S0 

execution  of  Avhich  she  bad  not  joined,  if  such  suit  be 
brouiibt  in  the  lifetime  of  the  husband.'  The  fact  in  itself 
is  ini})t)rtant,  but  may  be  stated  iii  very  brief  terms,  Avliioh 
is  usually  done  by  a  parenthetical  clause  in  connection  with 
the  recital  of  the  indebtedness;  thus : 

To  secure  the  payment  of  $1^.^00.00  {^part purchase  moneij) 
evidenced  hy  four  notes ^  etc. 

The  same  fact  may,  if  so  desired,  be  stated  more  fully,  by 
a  distinct  allusion  to  the  purchase  money  clause  in  the  body 
of  the  instrument,  in  this  manner  : 

TJi is  mortgage  is  given  {it  is  stated)  to  sectu'e  the  j^ftyment 
of{aportio?iof)  the  unpaid  purchase  money  for  said  ahuce 
denser  ihed  premises. 

§  17.  Mort?a2:es  of  the  Homestead.  The  jealous  care 
with  which  the  law  guards  tlie  homestead  is  never  more 
fully  exemplilied  than  in  the  safeguards  and  resti-aints 
which  it  has  placed  upon  all  attempts  to  incumber  it;  and 
upon  all  conveyances  of  property,  whether  by  deed  or  mort- 
gage, the  character  of  the  premises,  considered  in  relation 
t<j  its  use  and  occupancy,  is  an  incjuiry  never  to  be  omitted. 
In  some  States  no  valid  mortgage  of  the  homestead  can  bo 
etfected;'  in  a  majority  of  the  others  such  mortgage  is  elfcct- 
ual,  only  when  there  has  been  a  special  release  and  waiver  of 
the  right;*  while  in  all  the  States,  the  free  and  vohintaiy 
assent  of  the  wife,  the  mortgagor  being  a  mai'ried  man,  is  a 
C(mdition  precedent  to  the  vesting  of  the  lien.*  AVhere  tiie 
statute  prescribes  formalities  relative  to  acknowledgment, 

'  Fletchpru.  Holiiu-fl,  32  Iiiil.   I'.»7.  «  Lour  r.  Mostyn.   OT)  Ala.   .Vl.l; 

'Van  Wickle  i'.  Laiulry,  'Jii  La.  Aiiilt'i*s<)ii  r.  ('ulbnt,  .Vi  Iowa,  L'llM; 

Ann.    33();   ami    we    Moti^clion    r.  (jrilliii    r.  I'nictor.  II  lUi.sli  (Ky.), 

M.tstcrsori,  ^'J  (Ja.  M.'i;  Cainplu'll  u.  rj71;    Slinritl     v.     Suitliwick,    -111 

Elliolt.  W  Tex.  151.  Mi<-li.    'AT);  LliaJiibcn*   V.   Cox,  23 

»Tru.st<-.-H    r.    J5.:i!o.   OH   III.  2IH;  Kan.  WSA. 
Hrowninj;   v.   Harri.sH,  UD   111.    l.Vi; 
IJulkuiii  r.  \V<x»d,  5«  Ahi.  012. 


390  ABSTRACTS    OF    TITLE. 

such  formalities  become  matters  of  substance,  and  tlieir  due 
<»l)servance  is  in  all  cases  necessary;'  but  where  n<)])articular 
moile  is  prescribed,  any  jc>int  action,  })roperly  acknowledged, 
Avili  probably  satisfy  the  requirement  of  the  voluntary  sig- 
nature and  assent  of  the  wife."  AVhere  tlie  statute  requires 
an  express  waiver,  this  ma}'  be  shown  briefly,  in  all  pro}ierly 
executed  mortgages,  by  a  simi)le  recital  of  the  fact;  as, 
"  homestead  rights  waived,"  while  the  absence  of  any  words 
indicative  of  such  intention,  might,  with  propriety,  be  also 
noted.  The  only  exception  to  the  rules  above  stated  is, 
when  the  mortgage  is  given  to  secure  all  or  a  portion  of  the 
unpaid  purchase  money,  and  in  this  case  they  all  yield  to 
the  superior  equity  of  the  vendor's  lien."  In  examinations 
of  title  an  inquiry  in  pais  is  always  raised  by  mortgages 
purporting  to  be  executed  by  the  husband  only,  as  well 
as  when  the  joint  action  of  husband  and  wife  is  shown,  but 
unaccompanied  by  any  expression  indicative  of  release  or 
waiver,  when  such  expressed  waiver  is  a  statutory  essential, 
unless  the  mortgage  in  terms  purports  to  be  a  security  for 
the  purchase  price. 

§18.  Mortgage  of  After-acquired  Property.  As  to  the 
effect  of  deeds  and  mortgages  of  property  to  which  the 
grantor  or  mortgagor  has  no  present  legal  title,  and  which 
contain  no  covenants  or  other  words  creating  an  estoppel, 
there  seems  to  be  much  diversity  of  judicial  opinion,  though 
the  authorities  are  in  the  main  harmonious  in  declaring 
equitable  interests  and  estates  to  be  proper  sul)jects  of  con- 
veyance by  mortgage.*  The  question  fre(|uently  arises  in 
regard  to  mortgages  of  incipient  or  inchoate  rights  under 
the  United  States  land  laws,  and  such  mortgages  have  usu- 

'ilash  V.  Russell,  1  Lea  (Tcnn.),  mattei"s:  the  laws  and  decisions  of 

543;  Balkum  v.  Wood,  58  Ala.  642;  other  States  shed  but  little  light  on 

Warner  v.  Crosby,  89  111.  320.    The  questions  of  this  character, 

fact  that  the  deed  recites  a  waiver  ^  Fletcher    v.    Holmes,   32  Ind. 

does  not  help  a  defective  acknowl-  497;  Amphlet  v.  Hibbard,  29  Midi, 

edgment:   Best  v.  Gholson,   89  111.  298;  Thompson  v.  Lyman,  28  Wis. 

465.  266. 

-  Forsyth  v.  Freer,  62  Ala.  443.  •*  Bank  of  Greensboro  v.  Clapp, 

Local  statutes  must  decide  these  76  N.  C.  482. 


MORTGAGES.  301 

ally  been  iiphokl  by  the  State  courts,  particularly  when  the 
transaction  was  shown  to  be  one  of  good  faith,'  and,  when 
congress  has  imposed  no  positive  restrictions,  the  right  is 
usually  accorded  to  one  rightfully  in  })ossession  of  the  soil, 
to  make  any  valid  contract  concerning  the  title  to  same  jired- 
icated  upon  the  hypothesis  that  he  may  thereafter  lawfully 
acquire  it.'  So,  too,  where  a  railroad  company  made  amort- 
gage  on  the  property  "  then  belonging  to  or  thereafter  to  be 
acquired"  by  said  company,  with  covenants  for  further  rea- 
sonable and  necessary  conveyances,  as  to  subsequentlv  ac- 
quired property,  it  was  held  that  the  mortgage  became  a 
valid  lien  upon  any  interest  in  real  as  well  as  pei*sonal  estate, 
subsequently  acquired  by  the  company  for  the  use  of  its 
road,  even  superior  to  a  vendor's  lien  for  the  purchase  money 
of  the  lands.'  Courts  of  equity  will  enforce  si)ecilic  execu- 
tion of  contracts,  and  give  relief  in  numerous  cases  of  agree- 
ments relating  to  lands  and  things  in  action,  or  to  contin- 
gent interests  or  expectancies,  upon  the  maxim  that  etjuity 
considers  that  done,  which,  being  agreed  to  be  done,  ought 
to  be  done,*  and  in  furtherance  of  this  principle,  where  no 
rule  of  law  is  infringed,  and  the  rights  of  third  persons  are 
not  prejudiced,  will,  in  proper  cases,  give  effect  to  mort- 
gages of  subsequently  acquired  projierty,' 

§  19.  Record  of  Mortgages.  ^Mortgages  come  within  the 
provisions  of  the  recording  acts,  and  impart  notice  in  like 
manner  as  deeds.'  They  are  governed  in  this  resj)c'ct  by  the 
same  general  rules   as  affect  other  conveyances,  while  in 

'Woodbury  t".  Donnan,  10  Minn.  *  Sillers  t'.  Li-stcr,   48   Miss.    51:5; 

838;    Wallace  v.  WiLson,   3U   Mo.  Stevens    v.    R.    II.   Co.,   45   How. 

3:«;  Clark  v.    Daker,  14  Cal.  615;  (N.  Y.  Pr.)  104. 

IteaH«iner  v.  Markley,  25  Kan.  0:{5.  »  Heall  r.  Wliito,   04   U.   S.   382; 

*I^inib  V.    Davenport,  18  Wall.  Rite  r.  Kelso,  07  Iowa,  115. 

307.  *J<)linson  i'.  Sta^K'.  2  Johns.  510; 

'I'ierce  v.    Milwaukee,  etf.,    R.  Rice   f.  I)<'wey,  54    Harh.    (.V.    Y.) 

R.  Qj.,  24  Win.  551;   and  see  M<ir-  455;  Ilieknian  f.  renin,   0  <'<ildw. 

rill   V.    NoycM,  50   Me.    45H.     Such  (T.-iui.)    lICi;   Shannon    c.  Hall,    72 

niortj;aK«'H   form   an   «'X('e|iti<in  to  HI.  !C>1:  Van  .\ken   v.  (JletiMon,   3-4 

the  general  rule  that  |iro|Mrty  not  Mieh.  477. 
in  exiijlcnef  can  not  be  convened. 


392  ABSTRACTS    OF    TITLE. 

several  States  tlicy  are  further  regulated  in  regard  to  priority, 
etc.,  by  special  laws.  The  registry  of  a  mortgage  is  notice 
only  to  the  extent  of  the  sum  specified  in  the  record,'  and 
of  the  jiroperty  therein  described,'  and  intending  purchasers 
are  only  chargeable  with  notice  of  such  facts  as  the  record 
discloses,  and  not  of  undisclosed  intent.' 

If  a  moi'tgage  is  given  to  secure  an  ascertained  debt,  the 
amount  of  the  debt  should  be  stated;  and  if  it  is  intended  to 
secure  a  debt  not  ascertained,  such  data  slnnihl  be  given 
respecting  it  as  will  put  any  one  interested  in  the  inquiry 
upon  the  track  leading  to  a  discovery.  If  it  is  given  to 
secure  an  existing  or  a  future  liability,  the  foundation  of  such 
liability  should  be  set  forth.  Without  this,  a  subsequent 
honajide  purchaser,  with  no  actual  knowledge  or  notice  of 
the  facts,  is  not  chargeable  with  notice  of  the  amount 
secured.' 

As  between  two  mortgages,  the  first  recorded  is  the  prior 
lien,'  and  where  a  mortgage  and  conveyance  of  the  same 
property  are  made  at  the  same  time,  the  mortgage,  if  recorded 
first,  will  take  precedence  of  the  deed.''  The  rights  of  the 
mortgagee  are  fixed  when  he  places  his  mortgage  on  record, 
and  the  subsequent  destruction  of  the  record,  will  not,  it 
seems,  extinguish  or  destroy  the  notice  afforded  by  regis- 

'  Beckman    v.   Frost,   18  Johns.  Uernian  v.  Deming,  44  Conn.  124. 

544;  North  v.  Belden,  13  Conn.  376.  ••  So  liekl  whore  tlie  record  merely 

Even  tliough  there  lias  been  a  mis-  stated  that    the    grantor   had  on 

take    in    recording  :      Bullock  v.  the    same   date  as  the  mortgage 

Battenhousen,  108  III.  28;  Lowiy  v.  made  his  promissory  note,  payable, 

Davis,  69  Ind.  589.     But  it  would  etc.,  without  giving  the  amount  : 

seem  that  the  recorder  would  be  Bullock  v.  Battenhousen,    108  111. 

liable  in  damages  to  any  one  who  28;  Hart  v.  Chalker,  14   Conn.  77. 

might  suffer  from  the  error  :  Lowry  But    see  North  v.   Knowlton,   23 

V.  Davis,  69  Ind.  589.  PVd.  Rep.  163,  where  en  semhle  a 

*  Simmons  v.   Fuller,    17  ]Minn.  contrary  doctrine  is  indicated. 

485;  Gahvay  v.   Malchou,   5  Neb.  *  Ripley  v.  Harris,   3  Biss.    199; 

285;  White  v.   McGarry,   2    FUp.  Odd  Fellows  Suv.  Bank  u  Bim ton, 

(C.  Ct.)  572.  46  Cal.  603;  Van  Aken  v.  Gleason, 

» Disque  v.  Wright,  49  Iowa,  538;  34  Mich.  477. 

Galway  v.  Malchou,  5  Neb.  285;  '  Odgen  u.  Walkers,  12  Kan.  282. 


MORTGAGES.  303 

tration,  nor  injuriously  affect  the  rights  of  the  mortgagee,' 
while  as  betweeu  the  original  parties,"  and  their  heirs,'  the 
mortgage  will  still  be  valid  and  effective  although  un- 
recorded. 

§  20.  Notice  Imparted  from  Possession.  If  the  real 
owner  of  projierty  allows  it  to  stand  recorded  in  the  name 
of  another,  by  a  title  translative  of  property,  he  puts  it  in 
the  power  of  that  other  to  create  a  valid  mortgage  on  it;* 
yet  one  who  takes  a  mortgage  from  the  record  owner  of  lamls, 
which  are  in  the  notorious  and  exclusive  possession  of 
another,  is  bound  to  inquire  as  to  the  claims  or  interest  of 
the  person  so  in  possession,  and  is  chargeable  with  whatever 
he  might  have  learned  by  reasonable  inquiry,  notwith- 
standing he  lias  searched  tlie  records  and  found  no  deed.* 

§  21.  Re-recarfls.  A  re-record  of  a  mortgage  is  treated 
the  same  as  a  re-record  of  a  deed ;  bare  mention  is  sufficient 
provided  the  two  records  show  a  literal  conformitv,  other- 
wise they  are  to  be  regcirtled  as  independent  instruments. 
Re-records  of  mortgages,  lilvc  re-records  of  deeds,  are  fre- 
quently made  to  correct  errors  of  the  former  recoi-d,  and  in 
every  instance  the  two  sliould  be  carefully  compared. 

§  22.  Trust  Deeds.  Trust  deeds  in  the  natui-e  of  a 
mortgage  were  once  in  very  common  use,  but  the  sweeping 
changes  produced  by  the  abolition  of  the  common  law  doc- 
trine of  uses  and  trusts  and  the  limitation  of  i)owei-s,  liavc 
now  confined  them  to  a  few  States,  and  even  in  those  States, 
under  the  inlluence  of  recent  legislation,  moi'tgages  are  to 
some  extent  taking  their  place.  In  general  effect  a  trust 
deed  is  the  same  as  a  mortgage,  and  like  a  nnn-tgage  is  a 
mere  security  for  the  payment  of  money,  or  for  the  |)ei-form- 
ance  of  certain  undertakings  by  the  grantor.  It  is  a  mere 
incident  to  the  del)t  which  it  secures,  and  upttn  w  liieh  it 

'  Shannon  v.  Hall,  72  111.  8r>}.  fiO|  ;  Slnpanl  r.  SlMp.mi.  :%  .Mi<-h. 

*Cavanauyh      i'.     r<t<'is<)n,     47  17:1. 

Tex.  197.  'S<li<H)l    DiMtrict    i-.    Tiiylor,    19 

'M'I«'iuKlilin    V.  IlitiiKiMi,  W  I'a.  Kan.  L*H7  :  anilst-o  I'luscll  r.ThaytT, 

St  -.m.  'M  .Mich.  4G7. 

'Hunter  V.  iJuckmr,  'J'J  I^u  .'\nn. 


30-i  ABSTRACTS   OF    TITLE. 

depends.'  The  same  general  princii)les  are  ap])lical)]e  to  this 
class  of  conveyances  as  to  other  deeds  intended  only  as 
security,  and  the  chief  feature  which  distin<,nuslies  them 
from  mortgages  is,  that  here  the  conveyance  is  not  made  to 
the  creditor  direct,  but  to  a  trustee  who  holds  a  naked  trust 
for  the  benefit  of  the  holder  of  the  evidence  of  the  indeljted- 
ness,  which,  if  negotiable,  passes  from  hand  to  hand  as  other 
commercial  paper,  the  incident  of  the  lien  following  the 
note  to  the  hands  of  the  last  indorsee,  wlio,  on  default,  may 
call  upon  the  trustee  to  execute  the  trust  according  to  its 
terms.  The  grantor  in  a  trust  deed,  in  declaring  the  trust, 
may  mold  and  give  it  any  shape  he  chooses,  and  he  may 
provide  for  the  appointment  of  a  successor  or  successors  to 
the  trustee  upon  such  terms  as  he  may  choose  to  impose, 
but  when  imposed  the  terms  must  be  pursued,  to  render  the 
acts  of  the  successor  valid.  It  is  alone  by  the  force  of  the 
poAvers  delegated  by  the  deed  that  the  trustee  can  perform 
any  act  with  reference  to  the  trust  property,  and  in  execut- 
ing those  powers  he  must  pursue  them,  or  his  acts  will  be 
void.^ 

An  unexecuted  trust,  if  still  an  existing  lien,  is  treated  in 
the  same  manner  as  mortfjfages  under  like  conditions.  The 
abstract  should  show  the  trustee;  the  successor  in  trust,  if 
any  is  ajipointed;  the  cestui  que  trust  named  ;  and  a  general 
description  of  the  indebtedness  as  in  case  of  ordinary  mort- 
gages.    An  illustration  is  herewith  given : 


James  Johnson 
to 


Trust  Deed. 

Dated  June  1,  18S9.. 


Edgar  Madden^  Trus-   [       Recorded  June  5,  188'2. 
tee.  J       Booh  129.     Page  510. 

To  secure  the  payment  of  $lfiOO 
and  interest  thereon  at  eight  per  cent,  per  annum,  in  tico 
years  from  the  date  hereof ,  evidenced  ly  said  first  party"^  s  one 

'Life    Ins.    Co.   v.    White,    106      100  111.  189;  EUis  r.  R.  R.  Co.,  107 
111.  67.  Mass.  12. 

*  Equitable  Ti-ust  Co.  v,  Fisher, 


MORTGAGES.  305 

certain  promissory  note,  hearing  date  even  herewith,  and  pay- 
able to  the  order  of  George  W.  Smith. 

Conveys  land,  etc.  [here  set  out  the  description  of  the  pn  })i- 
ises  conveyed^  in  trust  and  upon  the  conditions  therein  speci- 
fied  and  enumerated. 

Power  of  sale  given  on  default  after  thirty  days"  notice. 

Homestead  rights  waived. 

G.  Frank  White,  successor  in  trust. 

Acknowledged  June  1,  1SS2. 

If  followed  by  foreclosure,  and  the  trustee's  deed  ajijieo's 
in  the  same  examination,  insert  the  power  of  sale  in  full  as 
found  in  the  instrument,  immediately  after  the  descri])tion 
of  the  property,  thus  : 

In  trust,  nevertheless,  that  in  case  of  default  in  the  payment 
of  the  note  secured  hereby,  or  any  part  thereof  ,  according  to 
the  tenor  and  effect  of  said  note,  or  in  case  of  waste  or  mm- 
'aymentof  taxes  or  assessments,  or  neglvci  to  procure  or  renew 
insurance  as  hereinafter  provided,  or  in  case  of  tJie  breach  of 
any  oftJie  covenants  or  agreements  herein  mentioned,  then  it 
aJuM  he  lawful  for  the  said  party  of  the  second  part  or  his 
successor  in  trust,  on  application  of  the  legal  holder  of  said 
vromissory  note  {or  either  of  them),  to  enter  vj'on,  possess, 
hold  and  enjoy  the  above  granted  pre7nises,  and  either  with 
or  without  such  entry  to  sell  and  dispose  of  said  premises, 
and  all  right,  title,  benefit  and  equity  of  redemption  of 
said  party  of  the  first  part,  his  heirs  and  assigns  therein, 
at  pxdAic  auction,  at  the  front  door  of  the  court  house  in 
Chicago,  Illinois,  or  on  said  premises,  or  any  part  thereof, 
as  may  he  specified  in  the  notice  of  such  sale,  for  the 
highest  and  best  j)rire  the  same  vv'll  bring  in  cash,  thirty 
days'  previous  notice  of  such  sale  having  been  given  by  jtub- 
ligation  once  in  each  week,  for  four  successive  weeks,  in  the 
Chicago  Legid  News,  or  in  any  newsjiajier  at  that  time  pub- 
lished in  said  city  <f  Chicago,  and  to  make,  ccecutt'  and  de- 
liver to  tlve  jturchaser  or  jmrcJuisers  at  such  sale,g*nMl  and  suf 
iunent  dfi'd  or  d^'^ds  of  cnuveyaticc  for  the  j>reinises  sohl.  * 
*     *     *      Which  sale  or  sales  so  made  shall  be  a  j'<rji<(u<tl 


396  ABSTKACTS   OF   TITLE. 

har,  hoth  in  laio  and  eijuity^  against  the  said  partu  of  the  first 
part^  his  heirs  and  assigns  and  all  other  persons  claiming  the 
premises  aforesaid^  or  any p>art  thereof^  hij^from  through  or 
under  said  party  of  the  first  part  {or  any  of  them). 

Second  party ^  with  or  without  re-advertising .,  is  hereljy 
authorized  and  empowered  to  postpone  or  adjourn  said  sale 
f  om  time  to  time  at  his  discrctioni  and  also  to  sell  the  said 
2>remises,  entire,  without  division,  or  in  p>(^i'ccls,  as  he  may 
])rcfcr  or  think  best. 

It  is  agreed  that  in  case  of  default  in  any  of  said  payments 
of  principal  or  interest,  according  to  the  tenor  and  effect  of 
said  note,  or  any  part  thereof,  or  of  a  breach  of  any  of  the 
covenants  or  agreements  herein,  hy  the  party  of  tJie  fi/rst  part, 
his  executors,  administrators  or  assigns,  then,  and  in  that 
case,  the  whole  of  said  principal  sum  hereby  secured,  and  the 
interest  thereon  to  the  time  of  sale,  may  at  once,  at  the  opjtion 
{without  notice  thereof  to  said  party  (f  the  first  part,  his  heirs  ^ 
assigns  or  legal  representatives)  of  tJte  legal  holder  thereof, 
become  due  and  payable,  and  the  said  premises  be  sold  in  the 
manner  and  with  the  same  effect,  as  if  the  said  indebtedness 
had  matured. 

First  party  covenants  that  in  case  of  a  sale  and  conveyance 
as  aforesaid,  of  said p)remises,  any  deed  or  deeds  of  convey- 
ance made  in  pursuance  of  such  sale  shall  be  prima  facie 
evidence  of  the  due  compliance  with  and  performance  of  the 
terms,  conditions  and  reguirements  of  this  deed  of  trust,  by 
second  party,  or  his  successor  in  trust  aforesaid,  in  advertising 
and  making  such  sale  and  conveyance,  to  the  extent  of  the 
recitals  contained  in  such  deed  or  deeds. 

§  23.  Power  of  Sale.  The  power  of  sale  contained  in  a 
deed  of  trust  or  mortgage  must  be  strictly  pursued,'  and  tlie 
utmost  fairness  must  be  observed  in  its  execution;  but  such 
strictness  and  literal  compliance  should  not  be  exacted  as 
would  destroy  the  power.'     AVhere  title  is  claimed  through  a 

'  Cranston  u.  Crane,  97  Mass.  459.       ulation,   regulate  the  terms  of  a 
'Waller  V.   Arnold,   71   111.  3.50.       power  of  sale  of  the  premises  by- 
Parties  to  a  mortgage  may,  by  stip-      the  mortgagee;  and  the  courts  will 


MORTGAGES.  397 

trustee  or  mortgagee  acting  under  a  power,  a  reason-iMo 
degree  of  detail  is  necessary  in  the  abstiact,  Avhicli  slioulil 
show  sufficient  of  the  proceedings  as  evidenced  by  tlu'  trus- 
tee's or  mortgagee's  deed,  to  indicate  a  substantial  coni]>liance 
with  every  requisite.  "Wlien  permitted  by  statute,  t'.ie  sale 
of  a  mortgaged  estate  being  made  in  pursuance  of  a  valid 
power  given  by  the  owner,  vests  in  the  ]>ui'chaser  an  estate 
in  fee,  free  from  the  original  condition  and  from  any  right 
of  redemption,'  and  the  ])ower,  being  coupled  with  an  inter- 
est, is  irrevocable,  and  hence  may  be  exercised  even  after  the 
death  of  the  mortgagee."  Though  one  who  undertakes  to 
execute  a  power  is  bound  to  a  strict  compliance,  as  well  as 
the  observance  of  good  faith'  and  a  suitable  regard  for  his 
principal,  3'et  a  dereliction  in  this  respect  will  not  usually 
affect  a  purchaser  in  good  faith,  who  being  a  stranger  to 
his  proceedings,  and  finding  tliem  all  correct  in  form,  takes 
the  property;*  yet  as  the  })ayment  of  the  debt  secured  by 
the  trust  deed  or  mortgage  defeats  the  power  of  sale,  a  pur- 
chaser at  a  sale  made  under  such  power  must  see  to  it  that 
the  grantor  in  the  deed  or  mortgage  is  in  default,  and  that 
some  part  of  the  debt  is  due  and  unpaid/ 

The  omission  of  the  power  from  a  mortgage  merely  limits 
the  mode  of  foreclosure  to  that  by  bill  in  ecpiity,"  while  its 
insertion  does  not  oust  the  jurisdiction  of  a  court  of  equity, 
nor  preclude  a  party  from  resorting  to  that  tribunal.  It  is 
cumulative  only.'  In  its  general  nature  it  is  a  power 
coupled  with   an  interest,  is  irrevocable,  appendant  to  the 

not  interfere  to  control  the  right,  Bt-lf,  to  wlunn  tin- purclia-sor  con- 
in  the  al>sence  of  fraud,  or  of  soiiio  veys,  tliesale  is  not  void,  hut  only 
Bt;itutory  re;^ilations  on  the  suh-  vnidaliK- in  (Hjuily,  anil  it  may  ln'si-t 
ject:  Elliott  v.  Wood,  45  N.  Y.  71.  aside  while  the  title  remains  in  the 
'  Kiasley  v.  Ames,  2  Met.  29.  niorlKaKee,  hut  not  after  transft-r 
*]\fr'/,fT  V.  B<'nnett,  1  Caine'HCas.  to  a  hoiut  fide  iiurelutser  :  UihlnuiH 
(N,  Y.)  1.  L(xal  stiitutes  niay^  v.  HoaK,  M  III.  4r». 
however,  serve  to  motlify  tiie  Htato-  *Mt;nUi)^ie  v.  Dawt-H,  11  .MK-n, 
ment  of  the-  t<-xt.  809. 

•  If  a  Hah-  Ih  made  hy  a  niortj^af^eo  *  Ventri-a  v.  Cohh,  lO'i   III.  'M\. 

under  a  jKiwcr  in  a  mort;:aKe,  not  '('owU-h  t".  Marlilr,  :17  Jlifh.  \'>H, 

in  k^xhI  faith,  hut  in  fact  for  him-  '  McAllister  V.  I'lant,  5-1  Mi«i.  100 


308 


ABSTRACTS    OF   TITLE. 


land,  and  parses  l\y  an  assi<j^nmont  of  the  mortfj-age  and 
secured  debt;'  it  is  not  inii)aired  l)y  tlie  deatli  of  the  niortr 
gago,  nor  by  lapse  of  time,  if  not  unreasonable,  in  closing 
the  sale  made  under  it;  and  covers  the  e(|uity  of  redemption, 
not  only  of  a  husband,  but  also  that  of  his  wife  surviving 
him.' 

§  24.  Assiijiimcnt.  The  interest  of  a  mortgagee, 
Avhether  regarded  as  a  lien  or  an  estate,  is  assigna])le  in  law  by 
a  proper  instrument  purporting  to  convey  the  same,  while  the 
assignment  of  the  notes  secured  1)}"  the  mortgage  operates 
in  equity  as  an  assignment  of  the  mortgage  itself.'  In  the 
latter  case,  the  assignment  of  the  debt  carries  with  it  the 
security  for  the  debt,  and  ordinarily  whoever  owns  the  debt 
is  likewise  the  owner  of  the  mortgage."  Assignments  of 
mortgages,  however,  are  usually  made  by  an  instrument  in 
writing  and  under  seal,  which,  when  recorded,  affords  con- 
structive notice  of  the  rights  of  the  assignee  to  all  persons, 
as  against  any  subsequent  acts  of  the  mortgagee  affecting 
the  mortgage,  and  protects  as  well  against  an  unauthorized 
discharge  as  against  a  subsequent  assignment  by  the  mort- 


iMcGuire  v.  Van  Pelt,  55  Ala. 
344;  Strothcr  v.  Law,  54  111.  413; 
Hyde  v.  Warren,  46  Miss.  13;  Brown 
V.  Delaney,  22  Minn.  349. 

^  Strother  v.  Law,  54  111.  413. 

3  Holmes  r.  McGinty,  44  Miss.  94; 
IMoore  v.  Cornell,  68  Penn.  St.  322; 
Blake  v.  Williams,  3  N.  H.  39; 
Croft  V.  Bunster,  9  Wis.  503;  Pot- 
ter V.  Stevens,  40  Mo.  229.  An  as- 
signment in  law  w  not  recognized 
in  some  States. 

•*  Kurtz  V.  Sponable,  6  Kan.  395; 
Nelson  v.  Ferris,  30  Mich.  497; 
Preston  v.  MoiTis  Case  &  Co.,  42 
Iowa,  549:  Mulford  v.  Peterson,  35 
N.  J.  L.  129;  Conner  v.  Banks,  18 
Ala.  42;  Bell  v.  Simpson,  75  Mo. 
485.  Where  a  party  is  so  related 
to  a  mortgage  that  he  is  not  per- 
sonally liable  upon  it,  but  is  obliged 


to  pay  it  to  save  his  estate,  and  he 
does  pay  it,  the  pajnnent  will  be 
presumed  to  be  made  for  that  pur- 
pose, and  in  such  case  no  assign- 
ment of  the  mortgage  to  the  per- 
son paying  it,  nor  proof  of  an  in- 
tention on  his  part  to  keep  it  alive, 
is  necessarj'  to  give  him  the  benefit 
of  it  :  Walker  v.  King,  44  Vt.  601 ; 
and  in  like  manner  a  party  paying 
a  decree  of  foreclosure  becomes 
invested  with  the  rights  of  the 
mortgagee  and  the  assignee  in 
e<iuity  of  the  mortgage;  although 
in  this  case  the  mortgage  is  in  fact 
paid,  yet  equity  will  recpiire  it  to 
subsist  until  every  party  wiio  owes 
a  duty  under  the  mortgage  shall 
have  discharged  it:  Wheeler  v. 
Willard,  44  Vt.  640. 


MORTGAGES.  300 

gagee.'  The  law  docs  not  require  the  assignment  to  be 
recorded,  as  essential  to  its  validity,  nor  is  it  necessary  for 
the  purposes  of  foreclosure;  and  assignments  are  excepted 
from  the  operation  of  the  recording  hiAvs  of  manv  of  tlie 
States.  AVith  respect  to  the  necessity  of  registration  for 
priority  of  title,  the  same  general  rule  prevails  between  dif- 
ferent assignees  of  a  mortgage  as  between  grantees  in  ordi- 
narv  deeds,"  and  a  release  by  the  mortgagee,  no  assignment 
appearing  of  record,  will  effectually  divest  the  lien,  notwith- 
standing an  assignment  has  in  fact  been  made.'  In  a  few 
States,  a  mortgage  is  not  assignable,  either  by  the  statute 
or  by  the  common  law;  the  assignment  of  the  note  carries 
the  mortgage  with  it,  but  only  in  equity,  and  trust  deeds 
given  as  security  for  a  loan,  being  regarded  in  the  nature  of 
mortgages,  stand  upon  the  same  footing  as  regards  assign- 
ability.' 

§  25.  Operation  aiul  EiFcet  of  Assiginnonts.  Though 
there  are  not  wanting  authoritative  decisions  to  the  con- 
trary, yet  the  latter  and  more  generally  received  doctrine 
seems  to  be,  that  an  assignment  is  to  be  regarded  only  as 
the  transfer  of  a  mere  chose  in  action,  and  not  an  interest 
in  lands,  the  debt  being  considered  as  the  princ'Ij)al  and  the 
land  only  the  incident; '  and  that  the  assignee  takes  it 
charged  with  the  notice  which  his  assignor  had  of  prior 
incumbrances,  and  subject  not  only  to  any  latent  equities 
that  exist  in  favor  of  tlic  mortgagor,  but  also  subject  to  the 
equities  in  favor  of  third  person.' 

'  Viele  V.  Jurlnon,   82  N.  Y.  32;  N.  Y.  88;   BaMwin   v.   Sapor,   70 

SU-in  r.  Sullivan.  :J1  N.  J.  E<i.  409;  III.    ^or>;  AytTs  v.    Hays.   00  I  ml. 

Torrcyv.  Dt-avitt,  12  RciK»rtor,  noH.  4.')2;   Swartz  t».  I^-ist,    13   Ohio  St. 

nVil<-y  V.   Wiiiiamson,    68  Mo.  419. 

71;  Trust    Co.  t'.  Shaw,   5   Sawyor  *  Olds  u.    Cuiniiiini^s,  31  III.  188; 

(C.  Ct.),  336;  MiCIuror.  Uurris.  10  Walker  v.    Doiiunt.   42    III.    272; 

Iowa,  591;    Ibiroy  v.   Deavitt,   M  Daily  v.  Smith.  14  OJiio  St.  390. 

Vt.    831;     Huron  r.   Vun    Sclmon-  » Dtlano  r.    Hcnn.tt,  90   III.  533; 

hovc-r,  87  N.  Y.  416.  IIit4h<<Mk    r.    M«rii<k,    IH    Win. 

»Mit<-lifll    V.    Humhaiii,  11    M<-.  3.'i7;    Tai^'o   r.  Chapinan.  5.S  N.  H. 

?/)'.',,  Bank  r.   Andorson.    14    luwa.  333;  B.  nii'-ttr.  Sa Ionian,  OCal.  134. 

644;  .Johnson  r.  ('aqM>nt<'r,  7  .Minn.  'Sinis   v.    Ilaminonil.   33   lowai, 

176;  Uuion  Collci^u  v.  Whcikr,  01  808;  Miu<>n   v.   Ainswurlh,  58   111. 


400  ABSTRACTS    OF    TITLE. 

§  2n.  Formal  Roqiiisitos  of  Assignments.  Thougli  tlie 
earlier  decisions  hold  tliat  the  interest  of  a  mortgagee  may 
be  transferred  or  conveyed  by  the  same  form  of  deeds  by 
which  the  owner  of  the  legal  estate  can  convey  it,'  the 
current  of  later  cases  pronounces  a  contrary  doctrine. 
The  mortgagee's  interest,  being  a  mere  chattel  interest,  is 
inseparable  from  the  debt  it  is  given  to  secure,"  and,  not  con- 
stituting an  estate  or  interest  in  the  land,  will  not  pass 
by  any  conveyance  of  the  land.  Hence  a  deed  of  all  the 
grantors  "  estate,  title  and  interest "  in  the  mortgaged 
premises,"  or  a  conveyance  of  all  his  "  lands,  tenements  and 
hereditaments,"  *  will  not  operate  as  an  assignment  of  a 
mortgage;  and  generally,  any  conveyance  or  attempted 
conveyance  of  the  mortgagee's  interest  before  foreclosure,  not 
accompanied  by  a  transfer  of  the  debt  secured,  is  a  nullity.' 

The  interest  owned  by  the  mortgagee  has  reference  solely 
to  the  mortffaffe  debt,  and  anv  instrument  which  describes 
the  parties  and  the  indebtedness,  and  sufficiently  identifies 
the  mortgage,  vrill  be  effective  as  an  assignment  without 
reference  to  the  mortgaged  premises,  while  the  instrument, 
in  form,  sliould  purport  to  be  a  transfer  of  the  mortgage 
itself  and  of  the  debt  thereby  secured,  and  not  of  the  mort- 
gaged premises.' 

1G3;    Schofer  v.    Reilly,  50  N.  Y.  *  Mack  v.  Wetzlar,  39  Cal.  247. 

61:  Ci-ane  v.  Turner,  Ql  N.  Y.  437;  *  Delano  v.  Bennett,  9!J   111.    533; 

Coffin  V.  Taylor,   16  111.  457;  Olds  Swan  v.  Yaple,  3  Iowa,  248;  John- 

V.  aimmings,  31  111.  188.  son  v.  Comett,  29  Ind.  59;  Ellison 

'Welch  u  Priest,  8  Allen  (Mass.),  v.  Daniels,    11   N.  H.  274.     But  if 

165;  Cutler  v.  Davenport,  1   Pick.  the    mortgagee    is    in    possession 

81.   And  see  Connor  v.  Whitmore,  under  his   mortgage    his  convey- 

62  Me.    186;  Stewart  v.  Barrow,  7  ance,  while  it  would  be  ineffectual 

Bush  (Ky.),  368.    But  this  is  when  as    regards    the  title,   might    yet 

the  legal  estate  passes  to  the  mort-  be     sufficient    to    confer     on    his 

gagee.  -grantee     a     right     of    possession. 

«Mack  V.  Wetzler,  39  Cal.   247;  Welsh  v.  Philips,  54  Ala.  309. 

Socklerr.     Delfs,     25    Kan.    159;  «  When  the  mortgage  is  regarded 

Trim  v.  Marsh,  54  N.  Y.  599.  as  a  mere  incident  to  the  debt  this 

2  Swan  V.  Yaple,   35  Iowa,  248;  would    be    sufficient,    but    more 

Runyan  v.  Messercau,    11   Johns.  would  be  required  in  States  where 

534;  Delano  v.  Bennet,  90  111.  533.  the  mortgagee  holds  the  legal  title 


MORTGAGES.  401 

§27.  Release  and  Satisfaction.  "Where  no  satisfaction 
appeal's  of  record,  tlie  law  will  presume  a  payment  of  the 
debt  it  was  given  to  secure,  where  the  mortgagee  has  failed 
to  exercise  his  right  of  foreclosure  for  the  period  of  twenty 
years,"  and  the  mortgage  will  cease  to  be  a  lien  after  the 
expiration  of  that  period."  The  mortgage  may  also  be  satis- 
fied by  foreclosure,  but  the  term  "  satisfaction  "as  ordinarily 
used,  refers  to  a  specilic  acknowledgment  of  payment  and 
discharge  of  the  lien  as  evidenced  by  some  written  instru- 
ment. Though  the  terms  "release"  and  "satisfaction"  are 
used  interchangeably,  there  is  yet  an  important  distinction 
between  them.  A  satisfa<ition  imjilies  a  payment  of  the 
debt,  and  ipso  facto  an  extinguishment  of  the  lien,  whereas 
a  release  or  discharge  \\v\\  relieve  the  land  from  the  burden 
of  the  debt  without  in  the  least  impairing  its  legal  elRcacy.' 

§  28.  Form  and  Retiuisites  of  Release.  The  general 
requisites  of  a  release  of  moi'tgage  dilfer  somewhat,  accord- 
ing to  the  light  in  which  it  is  to  be  regarded.  Where  the  mort- 
gage retains  its  common  law  character  of  a  convevance  of 
the  legal  estate,  a  deed  under  seal  with  apt  words  of  con- 
veyance would  be  necessary  to  revest  the  title  of  the  mort- 
gagor, which  might  be  effected  by  a  deed  of  release  and 
quit-claim;*  but  where  it  is  regarded  onl}-  in  the  cliaracter 
of  a  lien  or  seourity,  any  instrument  showing  an  intention 
to  relieve  the  land  from  the  burden,  or  acknowledging  ]^:iy 

and    estate.      In    such    States  an  '  Tliis  follows  as  a  result  of  the 

assignment  of    the    mortgage,    in  statute  of   liinitatitjns.      See    also 

terms  which  does  not  profess  to  act  Blackwell  f.  Harnett,  52  Tex.  32(!; 

uixm  the  land,  would  not  pass  the  Wliitney    r.    French,   'iX^   Vt.    60:5: 

mortgagee's  e8tat<:!  in  the  land,  but  P(jllock    v.    MaLson,    41    III.    51(i: 

only  the  sec-urity  it  affords   to  the  Locke  i'.  Caldwell,  HI  111.  417  ;  and 

holder   of    the  debt  :  Williams   o,  consult  4   Kent's  f^om.  IHO;  Jaik- 

Teachey,  a")  N.  C.  402.  son  r.  WcmkI.  12  Johns.  242. 

'  GfX)dwin   r.    Hal<lwin.    .V.(  Ala.  ^Adginton  r.  Hefner,  HI  111.    :ill. 

127;  I^wrence   v.    Hall.  14    N.    Y.  MV.it.rs  t'.  Jon«-s.   20    Iowa.  .{0:1; 

477:   Kmory  v.  Keighan.  hh  HI.  4h2;  Allard  r.  Lane.  IM  .Mf.  »;  IVrkins  \\ 

H<iwland  V.  Shurtl«-ir,  2  M.-t.  (M.iss.)  I'ittM.  11  Mass.  Pv'.'j;  and  sec  2  .Ioih-h 

20.    Till- pri-suiiiptioii  is  dis|iiilalilc,  on  .Mortgages  (2il  E<1.),  g  072  cl  stij. 
howevi-r:   (^heever    V.    I'erU-y,    11 
Allen  (M.IKS.),  r,HH. 

20 


4U2  ABSTKACTS    OF    TITLE. 

inoiit  or  satisfaction  of  the  debt  secured  by  the  niortgai^o, 
would  be  sullicient  to  divest  the  lien  and  restore  the  land 
to  its  original  condition."  The  latter  instrument  is  that 
now  generall}''  used,  an<l,  as  a  rule,  it  is  required  by  statute 
to  be  executed  by  the  mortgagee  or  his  assignee,  and 
acknowledged  or  proved  in  the  manner  provided  by  law  to 
entitle  convej'ances  to  record,  and  must  si)ecify  that  such 
mortgage  has  been  paid,  or  otherwise  satisfied  or  discharged. 
Xo  other  formalities  seem  necessary,  and  such  certificate, 
popularly  known  as  a  "  satisfaction  piece,"  has  the  same 
effect  as  the  old  deed  of  release.  In  a  few  States,  a  modi- 
fied form  of  a  release  deed  is  still  preserved,  thongh  its 
operation  and  effect  is  almost  identical  with  the  certificate 
of  payment,  or  "satisfaction  piece"  of  the  other  States.  It 
is  customary,  but  not  essential,  to  describe  the  property, 
and,  except  in  case  of  partial  releases,  such  description  has 
no  other  effect  than  to  give  greater  certainty  to  the  instru- 
mqnt  in  the  identification  of  the  land.  A  release  or  satis- 
faction immediately  follows  the  mortgage,  and  may  be 
shown  in  brief  terms." 

Millard    F.    Eiggle  |      Belea.^e. 

to  >     Dated,  etc. 

James  Enright.       )         ******** 

Consideration,  $1.00,  etc.^ 
Releases  all  right,  title,  interest,  etc.,  acguired  hy  mortgage, 
executed  hy  second  to  first  party,  hearing  date  April  1,  1S80, 
and  recorded  Apt^il  2,  1880,  in  hooh  306  of  Records,  iKige 
597,  to  the  premises  therein  described  {describing  same)  or, 
to  the  premises  therein  described  as  follows,  etc.      [  ^yhere  the 

'  Hcadley  u.  Gaundry,   41   Barb.  of  said  acts:  Bacon  r.  Van  Sclioon- 

279;  Thornton  v.  Irwin,  43  Mo.  153;  hoven,  87  N.  Y.  446.     It  take,''  the 

Lucas  V.  Harris,  20  III.  165.  place  of  a  release:    Ibid.,  and  sue 

'A  satisfaction  piece  is  a  convey-  Merchant  v.  Woods,  27  ^linn.  396. 

ance  -within  the  meaning  of  the  re-  ^This  alludes  to  the  payment  of 

cording  acts,  and  one  who  buys  or  the  mortgage  debt.     It  is  unneces- 

advances  money  to  be  secured  by  sary  to  st-t  out  the  clause;  ">;  1.00, 

mortgage  on  the  premises  is  a  bona  etc.,"  sufficiently  iiidicates  its  nat- 

fide  purchaser  within  the  provisions  ure. 


MORTGAGES.  403 

relmse  is  partial ;   to  so  much   of  the  premises  therein   de- 
scribed asfoUoics:']  Acknowled(/?nent. 

This  is  an  abstract  of  the  release  deed  in  use  in  Illinois. 
A  satisfaction  or  certificate  of  payment  will  rocjuire  only 
slightly  dilTcrent  treatment. 

§  29.  Release  b.v  Trustee.  Where  by  a  trust  deed, 
duly  recorded,  land  is  conveyed  to  trustees  in  fee,  and  they 
are  authorized  to  release  same  to  the  grantor  upon  payment 
of  the  indebtedness  thereby  secured,  a  release  before  pa\'- 
ment  would  be  a  breach  of  their  trust  and  would  be  unsi- 
vailing  in  equity  to  any  one  who  had  knowledge  of  the 
I)reach.'  But  being  vested  with  the  legal  title  the  same 
would  pass  by  their  deed  of  release  to  the  releasee,*  and  a 
second  conveyance  by  him  to  one  having  no  knowledge  of 
such  breach,  tiie  records,  or  a  conveyancer's  abstract  thereof, 
sho\ving  the  land  to  be  unincumbered,  would  vest  the  legal 
title  in  such  grantee,  or  if  made  by  Avay  of  pledge,  would 
entitle  the  indebtedness  thereby  secured  to  jjriority  of 
pa}Tnent.* 

A  far  greater  degree  of  care  must  be  observed,  however, 
in  passing  the  releases  of  a  trustee  than  of  a  mortgagee,  and 
purchasers  are  chargeable  Avitli  notice  of  all  the  recitals  of  the 
trust  deed.  They  are  bound  to  observe  the  limited  power 
of  the  trustee  to  release  the  ])ledged  proi)erty;  the  time  tlie 
notes  for  which  it  was  given  have  to  run,  and  the  terms 
wliich  authorize  a  reconveyance;  and  where  a  release  is 
made  before  the  maturity  of  tlie  notes,  they  being  negotia- 
ble, a  prudent  counsel  should  insist  upon  their  ])roduction 
or  of  satisfactory  evidence  showing  that  tliey  have  bcrn 
surrendered  or  paid.  Another  feature  is  j)resented  whcic 
the  trust  has  been  phiced  in  two  trustees,  and  counsel  in 
makinir  examinations  should   he  careful  to  see    that  both 

'In.s.  Co.  r.  EMrcdge,  102  U.  S.  «  Williatiis   v.   JackHon,    15   Ko- 

54.'5.  j><>rt<'r,  Titfi;    narlK)iir  v.    S-oitisli- 

»Taylorv.  Kin^'.  0   Miinf.   fVa.)       Aiauricun  Mtg.  Co.,  1U2  III.  I:.'!. 
SUH;  Den  u.  Trautiiiaii,  7  Ired.  (N. 
C.)  15.'5. 


40-i  ABSTRACTS    OF    TITLE. 

trustees  have  imitecl  in  tlic  release,  for  no  point  is  better  es- 
tablished than  that  the  release  of  lands  by  one  of  two 
trustees  is  not,  in  itself,  suUieient  to  discharge  the  land  from 
the  lien  of  the  mortgage. 

§  30.  Marjjjinal  Discliargo.  A  release  or  discharge 
made  by  entr}-  u})on  the  margin  of  the  record  of  the  niort- 
caixe  or  other  instrument,  is  in  common  use  in  all  tlie 
States,  and  when  made  by  the  owner  of  the  mortgage,  with 
whatever  formalities  may  be  prescribed  by  law,  is  ns  elfect- 
ual  in  divesting  the  lien  of  record  as  a  formal  and  separate 
satisfaction  piece  or  release.'  It  will  be  understood,  liow- 
ever,  that  the  authority  of  the  person  so  undertaking  to 
make  the  discharge  must  affirmatively  appear  of  record,  for 
a  marginal  entry  of  satisfaction  by  a  stranger,  without 
authority,  is  void,  although  he  claims  to  be  the  assignee  of 
the  mortgage  and  owner  of  the  indebtedness,'  and  where  a 
person  purporting  to  be  the  "  assignee  of  said  mortgage  " 
assumes  to  discharge  same,  but  no  assignment  appears  of 
record,  this  constitutes  a  radical  defect  in  the  title'  which 
should  be  remedied  before  it  is  accepted.  A  marginal  release 
or  satisfaction  should  immediately  follow  the  mortgage  it 
affects,  and  being  brief  itself  the  abstract  is  correspondingly 
so,  consisting  principally  of  a  recital  of  the  release;  thus, 

On  the  margin  of  the  record  of  the  foregoing  is  : 
Thomas  Smith  "]      Satiff action  of  Mortgage. 

{Assignee)  *  1      Bated  June  21,  1883. 

to  \      Recites  that  the '•^  loithin'''' Tnortr 

'William  Jones.         j  gage  has  heen  fidly  paid,  satis- 
fied and  discliarged. 
Not  witnessed.^ 

'A  purchaser  fincling    a    mort-  'De  Laureal  v.  Kemper,  9  Mo. 

gage  satisfied  of  record  by  a  mar-  App.  77. 

ginal  entry,  and  upon  the  faith  of  ^Torrey  v.  Deavitt,  12  Reporter, 

wliich,  without  actual  notice  of  a  508. 

mistake,  pays  the  purcliase  price,  ••  When  such  is  the  case, 

will  take  tlie  title  clear  of  the  mort-  ^  Marginal  releases    must,    as   a 

gage,  although  it  turns  out  that  the  rule,  be  witnessed  by  the  recorder 

entiy  was  a  mistake  which  would  or  officer  having  charge  of  the  rec- 

be  rectified  as  between  the  parties  :  ords. 
Ayers  v.  flays,  60  Ind.  452. 


MORTGAGES.  405 

"When  a  mortgage  or  deed  of  trust  is  duly  recorded,  the 
pereon  whose  property  is  incumbered  thereby  is  entitkxl, 
upon  fully  paying  and  satisfying  the  debt,  to  secure  ■which 
such  mortgage  or  trust  deed  was  given,  to  have  satisfactiou 
of  the  same  entered  upon  the  margin  of  the  record.  Ajid  a 
mortgagee  or  trustee  who  fails  or  refuses,  when  duly  re- 
quested, to  enter  up  such  satisfaction  or  to  execute  a  deed  of 
release,  is  liable  in  damages  to  the  party  aggrieved.' 

§  31.  Foreclosure.  Foreclosures  by  entry  anil  posses- 
sion, or  strict  i'ui-oclosures,  are  now  rarely  })ursued  or  allowed 
in  a  majority  of  the  States,  while  in  many  they  are  ]H)s- 
itively  jirohibited.  They  are  regarded  by  courts  as  severe 
remedies,  inasmuch  as  they  transfer  the  al)S()lute  title 
without  sale,  and  sometimes  without  notice,  no  matter  what 
the  value  of  the  premises.  In  like  manner  foreclosures  by 
advertisement  and  sale,  so  called,  are  now  generally  dis- 
countenanced even  where  allowed,  and  resort  is  usuall}'  had 
to  a  court  of  equity  to  perfect  a  title  acquired  through  this 
channel.  In  foreclosure  by  advertisement  the  mortgagee's 
or  trustee's  deed  recites  the  proceedings,  while  foreclosures 
in  efjuity  are  shown  b}'  a  summary  of  the  proceedings, 
decree  and  sale. 

§  32.  Proof  of  Title  under  Foreclosure.  To  sustain  a 
title  under  foreclosure  it  would  be  necessary  to  show:  the 
mortgage;  the  judgment  roll;  the  decree;  the  sale;  and  the 
officer's  deed.  The  abstract,  therefore,  should  disclose  in  a 
connected  and  orderly  manner  the  essential  features  of  each 
of  the  steps  and  proceedings  above  enumerated,  and  when- 
ever ))racticable,  in  the  order  there  given.  The  mortgage 
need  not  be  minutely  described,  nor  is  it  necessary  that  tluj 
power  of  sale  be  given.'  General  references  are  suiluicnt. 
The  judgment  roll  must  show  the  regularity  of  tlie  jiroceed- 
ings  and  the  jurisdiction  of  the  court  both  a.s  to  the  sul)ject- 
matter  and  the  parties.     Final   and   interlocutory   decrees 

'  YcTi^i'H  r.  (;il)on«'y,  47  Mo.  171;  'Tlii.s  fcjitiiro  rlcrivcs  most  of  itM 

Sher\v(xj(l  v.  Wilson;  2  S\v<'«'iiy  (N.  iiii|MirL:m(t'  wlicrc  (licri' hiw  Ih-j-ii  u 

Y.),  ftlH.     TliiH  Ih  thegenerul  btatu-  foroloHun'  l)y  lulvL-rtiMi'iiuiil  uii- 

iury  (JtHjtriiic.  dcr  tljr  itowur. 


l'>0  ABSTRACTS    OF    TITLE. 

must  show  every  matci-iul  pi)iiit  passed  upon.  The  sale  is 
evidenced  by  the  oliicer's  cerlilicate  of  sale,  rej^ort  and 
conlirniation.  The  deed  follows  as  a  part  of  all  tliat  has 
preceded  it,  and  the  whole  constitutes  but  one  transaction. 
Eacli  of  the  several  separate  features  are  integral  and  neces- 
sary ])arts. 


CHAPTER    XXIII. 


WILI5. 


§   1. 

2. 
3. 
4. 
5. 


8. 

9. 
10. 
11. 
12. 

13. 
14. 

15. 
16. 
17. 
18. 
19. 

20. 

21. 


Wills  generally.  §  33. 

Nuncupative  wills. 

Nature  of  testamentary  titles.  23. 

Devises.  24. 

Operation  and  effect  of  de-  25. 

vises.  26. 

Validity  of  devises.  i1. 

Testamentary  capacity. 

Construction  of  willa.  28. 

Repugnancy.  29. 

Descent  or  purchase.  30. 

Worils  of  gi'ant.  31. 

Words  of  purchase  and  limi- 
tation. 32. 

Tlie  rule  in  Shelly 's  ca.se.  33. 

Interpretation  of  particular  34. 

words  and  phrases.  35, 

Words  which  pass  real  estate.  36. 

Limitations  and  remainders.  37. 

Devise  to  a  class.  38. 

Gifts  of  the  income  of  realty.  39. 

Devise  with  iKjwer  of  dispo-  40. 

sition.  41. 

Indeterminate  devise,  43. 

Devise  on    condition  prece-  43. 
dent. 


Conditional  devise  —  mar- 
riage. 

Contingent  remainders. 

Contingent  reversion. 

Devise  to  niaiTied  woman. 

Devises  to  executors  in  trust. 

Bequest  to  devisee  by  de- 
scription. 

Precatory  trusts. 

Perpetuities. 

Lapsed  devise. 

Devises  for  the  paj-ment  of 
debts. 

Charges  on  lands  devised. 

Erjuitable  conversion. 

Residuary  clause. 

Codicils. 

Formal  requisites. 

Abstract  of  wills. 

Method  of  arrangement. 

Practical  examples. 

Probate  of  wills. 

Effect  of  probate. 

Foreign  probate. 

Abstract  of  probate  proceed- 
ings. 


§  1.  Wills  (Jciicnilly.  The  subject  of  testaTiiciitarv  con- 
veyances can  only  be  treated  briefly  and  in  outline.  They 
occur  in  the  lives  of  every  title  of  lon",^ standing,  and  pn'scnt 
a  greater  variety  of  j)has<'s  and  give  rise  toniore(juestions  in 
construction  than  any  other  sjM'cies  of  conveyance.  They* 
have  bcfu  the  subject  of  much  legislation,  and  of  a  vast  mass 
of   inharmonious,   conllictin^  and  c<->ntradictoi'y  decisions. 

(407) 


408  ADSTKACTS    OF    TITLE 

As  niunimonts  of  title  tlioy  should  be  of  equal  dignity  with 
deeils,  after  itnijier  ju'ubate  and  administration;  but  the  sub- 
tleties which  have  been  incorporated  into  the  laws  governing 
their  construction  have  rendered  them  less  so,  except  incases 
of  direct,  absolute  and  unincuml)ered  gifts.  In  the  follow- 
ing paragraplis  an  attempt  has  been  made  to  briefly  enu- 
merate a  few  of  the  leading  characteristics  of  this  class  of 
Conveyances,  and  to  point  out,  in  a  general  way,  some  of  the 
questions  that  arise  in  examination  of  titles  acquired  by  way 
ol  testamentary  gift.  This  has  been  done  rather  in  a  sug- 
irestive,  than  an  exhaustive  manner,  for  the  narrow  limits 
of  our  book  will  permit  of  none  other,  and  they  are  simply 
intended  as  clues  or  reminders  to  stimulate  the  examiner, 
and  direct  his  attention  to  matters  that  otherwise  might  have 
escaped  his  observation. 

§  2.  Niiiicnpative  Wills.  Oral  declarations  of  a  testa- 
mentary character  made  in  extremis  are  only  available  in  the 
disposition  of  personal  property,  and  hence  are  not  consid- 
ered in  the  examination  of  titles.' 

§  3.  Nature  ot  Testamentary  Titles.  One  who  takes 
under  a  will  is  regarded  as  a  purchaser  equally  with  him 
who  takes  under  a  deed,  but  the  estate  and  title  in  the  hands 
of  a  devisee,  while  as  full  and  ample  as  though  derived  by 
deed,  does  not  possess  that  indefeasible  character  which 
attaches  to  it  in  the  latter  case.  An  innocent  purchaser  by 
deed  takes  the  title  unaffected  by  latent  equities,  and  the  un- 
disclosed rights  of  third  persons,  but  the  devisee  acquires 
only  the  title  of  the  testator  as  it  existed  at  the  time  of  his 
death,  ^vith  all  its  infirmities  and  imperfections,  and  subject 
to  all  equities  and  liens  in  favor  of  strangers.  Such  title, 
though  covering  the  fee,  or  whatever  interest  may  have  been 
irranted,  is  liable  to  be  defeated  during  the  course  of  admin- 
istrationby  a  sale  b\'  the  executor  in  satisfaction  of  the  debts 
of  the  decedent;'  or  by  the  very  instrument  of  its  conveyance, 

'Lewis  V.  Aylott,  45   Tex.  190;  »  Hill  r.  Treat,  67  Me.  501;  Yan- 

F  iiiithdeal  v.   Smith.  64  N.  C.   52;      syckle  v.  Richai-(lson,  13  111.  171. 
CanipbeU  v.  Campbell,  21  Mich.  438, 


WILLS,  409 

when  legacies  thereby  given  are  expressly  charged  upon  the 
realty  and  there  exists  a  deficiency  of  pei-sonal  assets;'  or 
where  the  devise  is  couched  in  ambiguous  or  uncertain  lan- 
guage requiring  a  judicial  construction.  The  two  former 
contingencies  can  arise  only  prior  to  final  settlement;  the  lat- 
ter at  any  time  before  the  bar  of  the  statute  has  intervened. 
The  title  to  lands  devised  vests  in  the  devisee  immediately 
upon  the  death  of  the  testator;  and  such  devisee  is  entitled 
to  the  immediate  possession  of  the  land  devised,  and  to  hold 
the  same  until,  when  necessary,  they  are  subjected  by  the 
executor  to  the  payment  of  debts.^ 

§  4.  Devises.  "Devise"  is  the  generic  tenn  emplo3'ed 
to  denote  a  gift  of  real  property  by  a  person's  last  Avill  and 
testament,  and  is  distinguished  from  ''  legacy,"  which  a]> 
plies  onl}^  to  personalty.  By  analogy,  the  person  to  whom 
tlie  gift  is  made  is  called  a  devisee,  and  the  testator  is  fre- 
quently spoken  of  as  the  devisor.  The  term  "  bequest "  is  of 
indiscriminate  application  and  includes  both  "  devise  "  and 
"  legacy." ' 

§  5.  Operation  and  Effect  of  Devises.  It  is  a  rule  of 
the  common  law  that  a  will  operates  only  upon  real  estate 
owned  by  the  testator  at  the  time  of  making  the  same,  and 
the  title  to  which  he  retained  to  the  time  of  his  decease. 
This  rule  has  been  very  generally  changed  by  statute,  which 
substitutes  therefor  a  more  reasonable  rule  to  the  effect  that 
every  will  that  shall  be  made  by  a  testator,  in  express 
terms,  of  all  his  real  estate,  or  in  any  other  terms  denoting 
his  intent,  to  devise  all  his  real  pr<)i)erty,  shall  be  construed 
to  pa.ss  all  the  estate  which  he  was  entitled  to  devise  at  the 
time  of  his  death.*     It  is  the  application  of  this  rule  which 

'Wood    V.   Sampson,  25  Gratt.  O'llara.  4   TJilm.  HII.)   121;  rUinli 

(Va.)  845;   Lewis    v.    Darling',    16  r.  Hurfh,  52  Ind.  \M\. 

How.  1.     A  tlovisw  wlio  tak.-s  an  "  Hall  v.  Hail.  47  Ala.  LMMi;  Hatn. 

estate  undf-r  a  will    a-sstinu-s  the  ilton  r.  Porter,  filU'a.  St.  liHS. 

payiiH'nt  of  le^jacies  iniiKjsiHJ  upon  "Dow  r.   Dow,  30  Me.  2\\;  Ijidd 

him  \,y  the  terms  of  the  will,  and  v.  Harvey,  1  Post.  (N.  H.)514;  I-il- 

ojuity  will  r<-^;ard  him  nun  tnisti-e  Icrstfdt  v.  .Jmninpi.  23  (Ja.  571. 

and  ent'-rtain  a  hill  to  compel  him  ^("anlu-ld   r.  Hostwiek.  21  (omi. 

to   iH-rfuriii    hui    tru.st  :     .Mahar  v.  550;  I'd.ix  c.  Spiliniari,  is  111.  :t7:5. 


410  ABSTRACTS   OF    TITLE. 

gives  to  tlie  rosidiiaiT  clause  iniuliof  its  present  importance. 
Intention,  however,  is,  after  all,  the  true  test  of  a  will,  and 
where  the  intention  is  manifest  the  will  sjieaks  from  the 
time  intended  by  the  testator,  even  though  before  his 
death.' 

§  (1.  Validity  of  Devises.  The  several  States  of  the 
Union  possess  the  power  to  regulate  the  tenure  of  real 
pro])erty  within  their  respective  limits,  the  mode  of  its 
acquisition  and  transfer,  the  rules  of  its  descent,  and  the 
extent  to  whicli  a  testamentary  disposition  of  it  may  be 
exercised  by  its  owners  as  well  as  the  persons  or  classes  of 
persons  who  may  take  under  such  disposition."  Ilesort 
must  therefore  be  had  to  the  statute  to  determine  the 
validity  of  all  bequests,  and,  where  that  defines  or  enumer- 
ates the  persons  or  classes  who  may  take,  a  devise  to  persons 
or  classes  not  therein  specified  will,  it  seems,  be  void." 
Where  a  devise  is  void  by  the  rules  of  law,  the  land  descends 
to  the  heirs  at  law  of  the  testator/ 

§  7.  Testamentary  Capacity.  Every  work  on  wills  is 
largely  devoted  to  the  subject  of  testamentary  capacity. 
This  is  a  subject,  however,  that  does  not  ordinarily  arise  in 
examinations  of  title  otherwise  than  as  it  incidentally  ai> 
l)ears  in  passing  the  proceedings  relative  to  probate.  The 
rifht  of  testamentary  disposition  is  controlled  by  statute, 
but  is  given  generally  to  all  persons  of  full  (legal)  age,  being 
of   sound  mind   and   memory,  and   extends   to   all  s})ecies 

But  though   it  is  a  general  rule,  York,  a    devise  of  lands  in   that 

that  a  will  is  held  to  speak  from  State  can  only  be  made  to  natural 

the    death  of    the    testator,   it  is  persons,  and  to  such  corporations 

otherwise    where     the    language  as  are  created  under  the  laws  of 

used  repels  the  presumption,  tak-  the   State  and  are  authorized  to 

ing  into   consideration  the  entire  take  by  devise;  a  devise,  therefore, 

instrument :    Updike  v.  Tompkins,  of  lands  in  that  State  to  the  gov- 

lUO  111.  406.  ernment  of  the  United  States  was 

'  Phillipsburgh  v.  Burch,   37  N.  held  void:    UnitedStates  v.  Fox,  94 

J.  Efi.  482.  U.  S.  315. 

« United  States  v.  Fox,  94  U.  S.  •»  Deford  v.  Deford,  36   Jld.  168; 

(4  Otto)  315;    Kerr  v.  Dougherty,?  James  v.  James,  4  Paige,  115:  Ilay- 

N.  Y.  327.  den  v.  Stoughton,  5  Pick.  528. 

*  Thus,   by  a    statute    of    New 


■WILLS.  *  411 

of  property  and  to  every  right,  title  and  interest  therein. 
Alienage  and  coverture,  formerly  constituted  a  common  law 
or  statutory  disability,  but  a  gradual  removal  of  restraints 
on  alienation  has  virtually  or  expressly  abolished  such  dis- 
ability in  the  United  States.  Infants  and  persons  of  insuf- 
ficient mind  are  about  the  only  persons  upon  whom  any 
restrictions  are  now  ])laced.  The  facts  of  legal  age  and  a 
sound  and  disposing  mind  '  are  matters  of  primary  investi- 
gation and  proof  in  all  probates  of  wills,  and  the  questions 
thus  presented  and  presumably  satisfactorily  answered  at 
the  outset,  ai'e  not  again  raised  during  the  examination. 

§  8.  Construction  of  AVills.  Upon  the  ground  that  wills 
are  often  made  in  haste,  and  b}^  inexperienced  persons,  a 
devise  is  not  construed  strictly  and  technically,  like  a  deed, 
but  liberally,  and  according  to  the  intent  of  the  testator,  and 
such  intent  may  be  gathered,  in  case  of  doubt,  not  from 
detached  clauses,  but  from  the  whole  will,  so  that  every 
word  may  have  its  eifect,  if  possible.*  It  is  a  cardinal  rule, 
however,  in  the  construction  of  wills,  that  a  testator  is 
always  presumed  to  use  the  words  in  which  he  expresses 
himself,  according  to  tlieir  strict  and  primary  acceptation, 
unless  from  the  context  it  appears  that  he  has  used  them  in 
a  different  sense;  in  which  case  the  sense  in  which  he  thus 
api)ears  to  have  used  them  will  be  the  sense  in  which  they  are 
to  be  construed,'  and  technical  words  are  presumed  to  be  used 
in  their  legal  sense,  unless  there  is  a  plain  intent  to  the  con- 
trary.*   The  general   intent   will  jjrevail  over  expressions 

'  To  be  of  sound  and  disposing  ^  Luce  v.  Dunham,  09  X.  Y.  30; 
mind,  the  law  sinii)ly  reijuinstliat  Edwards  v.  Bibb,  43  Ala.  6G0; 
the  testator  be  able  to  nianaf^e  his  Mead  v.  Jennin^^,  46  Mo.  91;  Felt- 
own  aJTairs,  and  to  know  intelii-  man  v.  Butts,  8  Bush  (Ky.),  115. 
gently  wliat  di.siK)sition  he  is  inak-  "Wdrds  may  Ix!  considered  in  an 
ing  of  them:  Harvey  t'.  Sallen's  order  other  than  that  in  which 
Heirs,  50  Mo.  372,  they   are   placed,  if  the  intent  of 

*  Welch  V.   Huse,   49  Cal.    507;  the  U-stiitor  is  better  served  thus: 

Butler  V.  HueHtiH.  08  111.  591;  Lytle  Ferry's  Ajipeal,  102  Pa.  St.  207. 

V.  Ii«-veridge.  58  N.  Y.  592;  Moran  *  Butler   v.    Huestis,  08  III.  591; 

r.  Dill.hay.  «  Buhh.  431;  Bergan  v.  Franc.-'s  Kstat.',  75  I'a.  St.  2:20;  De- 

Cahill,  55  111.  100.  Kay  v.  Irving  5  Den,  010. 


412  AnSTRACTS    OF   TITLK. 

indicating  a  difTercnt  particular  intent,'  though  every  ex- 
pressed particular  intent  must  be  carried  out  when  it  can 
be,"  and  when  a  will  is  susceptible  of  a  twofold  construc- 
tion, one  of  which  avoitls  and  the  other  u])holds  it,  the  latter 
must  be  adopted/  The  general  rule,  however,  that  wills  are 
to  be  constnunl  according  to  the  intention  of  the  testator, 
must  be  understood  as  the  intention  of  the  testator  as 
expressed  in  the  will;  and  this  must  bejudged  of  exclusively, 
by  the  words  of  the  instrument,  as  applied  to  the  subject- 
matter  and  the  surrounding  circumstances,*  and  not  from 
extrinsic  matter  or  evidence  aliunde." 

These  are  the  general  principles  that  govern  the  construc- 
tion of  wills,  and  to  them  little  can  be  added  that  is  of 
general  application.  The  donor  of  property  by  testamen- 
tary disposition  has  an  almost  unlimited  scope  within  which 
to  exercise  his  judgment  or  to  gratif}'  his  caprice,  and  while 
multitudes  of  wills  are  daily  presented  for  construction  it  is 
seldom  that  we  find  any  two  of  them  exactly  similar.  Unlike 
deeds  of  conveyance  in  this  respect,  they  are  as  multiform 
and  distinct  in  their  structure,  phraseology  and  purposes  as 
are  the  mental  operations,  motives  and  feelings  of  the  differ- 
ent testators.  The  intention  must  in  all  cases  be  sought  for 
and  if  possible  ascertained;  and  this  intention,  when  it  is  not 
in  conflict  with  the  settled  policy  of   law,  will  always  be 

'  Bell  V.  Humphrey,  8  W.  Va.   1;  time  of  execution,  the  state  of  his 

Paiks    V.    Parks,    9    Paige,     107;  property,  his  family  ami  tlie  like, 

Schott's  Estate,  78  Pa.  St.  40;  Wat-  may  be  shown  in  order  to  throw 

son  V.  Blackwood,  50  Miss.  15.  light  upon  his  intention,  yet  as  the 

*  Bell  V.  Humplu-ej',  8  W.  Va.  1.  writing  is  the  only   outward  and 

*  Mason  v.  Jones,  2  Barb.  229.  visible  expression  of  his  meaning, 
■•Bell  V.  Humphrey,  8  W.  Va.  1;  no  other  words,  as  a  rule,  can  be 

Wheeler  v.  Hartshorn,  40  Wis.  83;  added  to  or  substituted  for   those 

Blanchard  v.  Maynard,  103  111.  60.  used.     Hunt  v.  AVhite,  24  Tex.  643; 

i  McAlister  v.  Butterfteld,  31  Ind.  Mackie  v.  Story,  93  U.  S.  589;  Aber- 

25;  Brownfield  v.   Wilson,  78  111.  crombie  v.   Abercrombie,  27  Ala. 

407;  Caldwell  v.  Caldwell,  7  Bush  489;  Hemck  v.   Stover,    5  Wend. 

(Ky.),  515;  Sherwood  r.  Sherwood,  (N.  Y.)580.    See,  however,  the  suc- 

45  Wis.  357.  It  is  true  that  the  ceeding  section  on  "  repugnancy . '^ 
condition  of  the  testator    at   the 


WILLS. 


413 


respected  and  allowed  to  operate.'  Any  construction  whicli 
will  result  in  ])artial  intestacy  is  to  be  avoided,  unless  the 
language  of  the  will  coni))els  it.'' 

§  9.  Repugnancy.  It  is  a  well  established  rule,  that 
where  two  or  more  provisions  in  a  will  are  clearly  repug- 
nant or  irreconcilable,  the  last  should  prevail,'  as  being 
indicative  of  the  testator's  latest  wish;*  yet  it  is  a  rule  that  is 
only  applied  in  cases  of  absolute  necessity,  as  Avhere  the 
provisions  are  totally  inconsistent  with  each  other,  and  the 
real  intention  of  the  testator  is  incapable  of  determination.' 
A  prior  provision,  however,  will  never  be  disturbed,  further 
than  is  absolutely  necessary  to  give  effect  to  a  sul)sequent 
one,"  nor  will  the  expression  of  a  particular  intent  be  suffi- 
cient to  overcome  the  manifest  general  intent.'  Thus,  Avhere 
the  first  clause  absolutely  disposes  of  all  testator's  property, 
a  subsequent  clause  providing  for  the  distribution  of  a  fund 
which  would  or  might  at  some  future  time  accrue  to  his 
estate  would  not  affect  the  antecedent  general  disposition, 
for  in  such  case,  no  residuum  being  contemplated,  there  could 
be  no  residuary  legatees.'     Similarly,  where  there  is  a  devise 


•  Douglass  V.  Blackford,  7  Md.  23. 
'  Vernon  v.   Vernon,   53  N.   Y. 

351;  Cate  v.  Cranor,  30  Ind.  292. 
The  state  of  the  law  at  the  time  of 
the  execution  of  a  will  often 
affords  material  assistance  in  arriv- 
ing at  the  intention  of  the  testator, 
when  it  would  otherwise  be  doubt- 
ful, but  the  rights  of  parties  taking 
under  the  will  are  always  to  be  de- 
terinine<l  by  the  law  as  it  existed 
at  the  time  the  will  took  effect: 
Carpenter  v.  Browning,  98  III.  2H2. 

*  Hamlin  v.  Exi)res8  Co.,  107 
III.  Wh  Fulton  V.  Hill,  41  CJa. 
r,M;  Bradstn-etr.  Clark.-,  12  Wend. 
(N.  Y.)  r,(»2;  Van  Nostran.l  r. 
Mwre,  52  N.  Y.  12;  Evans  v.  Hu<l- 
Bon,  6  Ind.  293;  Miller  v.  Flournoy, 
2fl  Ala.  721;  Bickering  r.  L.ingdon, 
22  Me.  430. 


*  Rountree  v.  Talbot,  89  111.  246. 

'  Covenhoven  v.  Sluiler,  2  Paige 
(N.  Y.),  122;Oxley  y.  Lane,  35  N. 
Y.  340;  Newl)old  v.  Boone,  52  Pa. 
St.  167;  Bartell  v.  King,  12  Mass. 
542;  Thrasher  v.  Ingram,  32  Ala. 
645;  Siceloff  v.  Redman,  26  Ind. 
251. 

»  Taggart  v.  Murray,  53  N.  Y. 
233;  Kenzie  v.  Roleson,  28  Ark. 
102;  Parker  v.  Parker,  13  Ohio  St. 
95;  Stiikle's Appeal,  29  Pa.  St.  234. 

'  Hamlin  v.  Express  Co.,  107 
111.  443:  Bell  V.  Humphrey,  8  W. 
Va.  1;  Cook  i\  Holmes,  11  Mass. 
52H;  Pickering  v.  Langdon,  22  Me. 
413;  S«-hotfH  Estjit4',  78  Pa.  St.  40; 
Watson  r.  Blackwood,  50  Mis.s.  15; 
Miller  v.  Flournoy,  26  Ala.  72-1. 

»  H.'iiiiiiig  V.  Vanicr,  31  Md.  102. 


414  ABSTRACTS    OF    TITLE. 

of  an  iniliiiiittMl  power  of  disposition  of  an  estate  in  such 
manner  as  the  devisee  may  think  pro])er,  a  limitation  over 
is  inoperative  and  void,  by  reason  of  its  repugnancy  to  the 
principal  devise.' 

Under  the  application  of  tlie  rule  that  a  will  should  be  so 
construed  as  to  elfectuate  the  intention  of  the  testator  as 
far  as  possible,  express  words  must  sometimes  yield  to  the 
otherwise  manifest  intention,  and  words  will  even  l)e  add(vl 
where  it  is  absolutely  necessary  to  avoid  absurdity  or  give 
effect  to  such  manifest  intention.' 

§  10.  Descent  or  Pureliaso.  It  is  a  rule  of  the  common 
law  that  where  devisees  under  a  will  ^vould  talce  the  same  es- 
tate in  quantity  and  quality  which  they  would  take  from  an 
intestate  ancestor  by  operation  of  law,  the  title  so  derived  is 
lield  by  descent  and  not  by  purchase,  and  this  rule  still  obtains 
in  several  of  the  States.  "  In  England,"  says  Robinson,  J.,' 
"  title  by  descent  was  favored  by  the  courts,  first,  because  land 
in  the  hands  of  the  heir  at  law  by  descent  was  chargeable 
with  the  payment  of  the  ancestor's  debts,  and  then  again 
because  it  favored  the  right  of  escheat  upon  the  failure  of 
lieirs  on  the  part  of  the  ancestor  from  "whom  the  lands  de- 
scended. On  the  other  hand,  land  acquired  by  purchase  w^as 
not  liable  for  debts,  and  upon  the  death  of  the  owner,  it  de- 
scended first  to  the  heirs  on  the  paternal  side,  and  upon  failure 
of  such  heirs,  then  to  the  heirs  on  the  part  of  the  mother. 
Title  by  descent  was  considered  the  worthier  title,  and 
where  the  will  gave  to  a  devisee  the  same  estate  in  quantity 
and  quality  which  he  would  have  taken  as  heir  at  law,  he 
was  adjudged  to  take  not  under  the  will,  but  by  descent  or 
operation  of  law."  '  But  when  one  devises  pro])erty  to  his 
heirs  it  is  but  fair  to  presume  he  intended  they  should  take 
the  property  under  the  will,  and  in  furtherance  of  this  prin- 

'  Hamlin    v.    Express    Co.,    107  ^Donnelly  v.  Turner,  15  Reporter, 

111.  443.  717. 

*  Welsch  V.  Savings  Bank,  94  111.  *  This  seems  to  have  been  the  view 

191 ;  Wright  v.   Dunn,   10  Wheat.  which  formerly  obtained   in    this 

204;  Bartlett  v.  King,  12  Mass.  537;  countiy  .     Mr.  Hilliard  says:     "A 

Rustou  V.  Ruston,  2  Dall.  244.  devise  is  void  if  made  to  the  heir 


"WILLS.  415 

ciple  the  rule  first  stated  has  been  set  aside  in  a  majority  of 
the  American  States,  and  the  devisees  in  such  cases  held  to 
take  by  purchase  and  not  by  descent.'  "Where,  however,  the 
gifts  to  the  heirs  at  hiAv  are  made  to  them  simpliciter,  the 
persons  to  take  and  tlie  jiroportions  must  be  determined  by 
the  statutes  of  descents  and  distril)ution.' 

§  11.  Words  of  Grant.  As  in  deeds  so  in  wills,  there  must 
b3  apt  words  of  grant  or  conve^'ance  or  words  indicative  of 
testamentary  intent,  but  any  form  of  expression  will  be  suili- 
cient  to  pass  the  title,  provided  the  intent  is  manifest.  "  Give," 
"  devise,"  or  "  bequeatli "  are  the  words  commonly  in  use,  and 
all  or  either  will  be  sufficient  to  pass  real  estate,  though  the 
technical  word  for  this  purpose  in  a  properly  drawn  will  is 
"devise."  '  AVords  of  advice,  desire,  recommendation,  etc., 
are  not  ordinarily  sufficient." 

§  12.  Words  of  Purchase  and  Limitation.  In  preparing 
tlie  synopsis  of  wills,  the  attention  of  the  examiner  is  par- 
ticularly directed  to  what  are  known  as  the  words  of  "pur- 
chase" and  "limitation."  These  are  the  words  used  in 
connection  with  gifts  to  specific  persons,  and  show,  as  in  case 
of  deeds,  the  nature  or  quality  of  the  estate  conveyed,  and 
are  usually  the  words  "heirs,"  "heirs  of  the  body,"  "issue," 
etc.,  and  accordingly  as  the  word  is  used  may  be  either  a 
word  of  purchase  or  of  limitation.  Sufiicient  of  the  context 
must  be  given  to  show  the  sense  in  which  the  word  is  used 

at  law,  and  if  itf::iv(s  liim  thesame  take  in  tlieir  own  right,  the  distii- 

estate  wliicli  he  woiiKl  have  inher-  bution  is  to  be  mude  jicr  capita  and 

itt-d.     In  such  case  the  heir  takes  T\()tperti1irpes:    Campbell  t>.  Wig- 

bj'  descent,   whicli  is  a  better  title  gins,  1  Rice's  CIi.   (S.   C.)  10;  and 

than  that  of  a  devisee;  because  an  see  Robinson  v.  Le  CJraml,  ().">   Ala. 

adverse  claimant  may  enter  upon  111. 

th<- latter,  but  not  ujion   an   heir.''  ^  Richards  r.  MiH<'r.  (i^  111.  117. 

2  Hill  Abrid^^.  514.     Hut   this   doc-  'Acceptance  of  a  devise  where  it 

trine  is  not  now  recogni/.eil.  is  benelicial  to  the  devisee  and  at- 

'  (Jilpin  r.  Ilollingsworth,  3   Md.  tended    with     no  charge  or    risk, 

190.     AVhen  heirs  take  by  purchase  is  always    preKunu'd  :     Brown    v. 

they  do  not  Uike  as  heirs,  but  as   a  Thorndike,  15  Pick.  8H8. 

cUuw  of  persons  to  whom   by  that  '•(iilbert  r.  f'hai)in,  19  Conn.  f?I!?; 

meat  8  the  t<-stator  luis  si-h  ( ted   to  Tohn  v.  Kami's  Kx'r,  11  Reiiorter, 

devise  his  proix-rty,  and   as   they  b39. 


416  ABSTRACTS    OF   TITLE. 

ami  poniiit  a  proper  construction.  The  word  "issue"  pre- 
sents the  largest  nunil)orol"  questions  and  has  been  produc- 
tive of  an  ahnost  innumerable  number  of  decisions.  As  a 
Avoi'd  of  limitation  it  is  collective,  and  signilies  all  the 
dosfiMulants  in  all  jLjenerations;  but  as  a  word  of  purchase  it 
denotes  tlio  particular  person  or  class  of  persons  to  take 
under  the  devise.  The  term  may  be  employed  in  either 
manner,  as  will  best  effectuate  the  testator's  intention,  and 
is  the  most  llexible  word  that  can  be  used.'  Courts  more 
rea<lily  interpret  tlie  word  "issue"  as  the  S3'n(»nvm  for 
"  children,"  and  as  a  mere  description  of  the  person  or  })ersons 
to  take,  than  they  do  the  words  "  heirs  "  or  "  heirs  of  the 
body." '  The  usual  and  ordinary  words  for  conveying  a  fee 
simple,  in  wills  as  well  as  in  deeds,  are  "  heirs,"  or  "  heirs 
and  assigns  forever ;"  but  a  devise  to  a  man  "  forever," 
or  to  one  "and  his  assigns  forever,"  or  to  one  in  "fee 
simple,"  Avill  pass  an  estate  of  inheritance  to  the  dev- 
isee, notwithstanding  the  omission  of  the  legal  words 
of  inheritance,"  while  the  statute  in  a  majority  of  the 
States  would  cover  the  deficiency  and  give  to  tlie  devisee 
an  estate  in  fee,  none  other  being  mentioned.'  Questions, 
as  to  whether  a  devisee  takes  the  fee  or  a  lesser  estate,  occur 

>  Timanus  V.  Dugan,  46  Md.  402;  50  Miss.   1;  Wotter  r.  Walker,  G3 

Daniel  v.  Wharti'iiby,  17  Wall.  6:^9.  Ga.  142;   Edwards  v.  Barnard,  84 

Words  in  the  introductory  or  other  Pa.  St.  184. 

parts  of  a  will  indicating  an  inton-  '•Leiter  v.  Sheppard,  85  111.  243; 

tion  of  the  testator  to  dispose  of  his  McConnell  v.  Smith,  23  111.  617;  Mir- 

whole  estate,  although  not  conclu-  fitt  t?.  Jessop,  94  111.158.   The  stat- 

sive  that  he  intends  to  pass  a  fee,  ute  very  generally  enacted  through- 

always    favor  such  constniction :  out  the  Union  provides,  substan- 

Geyer  v.  Wentzel,  68  Pa.  St.   84;  tially,  that  every  estate  in   lands 

Fearing  v.  Swift,  97  Mass.  413.  which  shall  be  granted,  conveyed 

■^In  England  the  word  "issue"  or  devised,  although  other  words 

is  a  word  of  limitation  and  not  heretofore  necessary  to  transfer  an 

of  purchase,   unless  the  contrary  estate  of  inheritance  be  not  added, 

clearly  appears:  2  Jarm.  on  Wills,  shall  be  deemed  a  fee  simple  estate 

328.  of  inheritance,  if  a  less  estate  be 

^Coke    Lit.  9  b;   2  Black.  Com.  not  limited  by  express  words,  or  do 

108;  Mej-ers  v.  Anderson,  1  Sfcrobh.  not  appear  to  have  been  granted, 

Eq.  (S.  C.)  344;  Timanus  r.  Dugan,  conveyed  or  devised  by  construc- 

46  Md.  402;  Tatimi  v.  McClella:i.  tion  or  operation  of  law. 


■^'ILLS.  417 

most  frequently  wliere  the  testator  in  his  anxiety  to  niake 
his  gift  effective  makes  several  bequests  in  the  alternative,  or 
limits  one  estate  upon  another,  and  are  usually  to  be  decided 
by  the  a]>plication  of  the  rule  in  Shelly's  case  as  modified  by 
local  la^v.  Xo  rule  of  general  appliciition  can  be  formulated, 
and  from  a  review  of  the  reported  cases  on  this  subject  one 
can  well  appreciate  the  remark  of  a  learned  writer,  that,  "  the 
liberality  of  the  law  in  construing  wills  has  opened  the  flood- 
gates of  legal  chaos."  '  It  would  seem,  however,  that  when- 
ever the  intention  of  the  testator  can  be  ascertained  it  will 
overcome  all  technical  rules,*  and  this  intention  turns,  not 
u])on  the  quantity  of  interest  given  to  the  first  taker  or  per- 
son specified,  but  upon  the  nature  of  the  estate  intended  to  be 
given  to  the  "  heirs."  ' 

§  13.  The  Rule  in  Shelly-s  Case.  Though  entailed 
estates  are  no  longer  permitted  in  any  of  these  United 
States,  the  rule  in  Shelly's  case  still  has  a  modified  force  in 
all,  and  is  often  invoked  in  the  construction  of  devises  to 
determine  the  operation  of  the  will  and  settle  conflicting 
claims.  This  rule  provides  that,  where  the  ancestor  takes 
an  estate  of  freehold,  and  in  the  same  gift  or  convej'ance, 
an  estate  is  limited,  either  mediately  or  immediately  to  his 
heirs,  either  in  fee  or  in  tail,  the  term  "  heirs "  is  a  Avord 
of  limitation  and  not  of  purchase,'  and  when  applied  to 
wills  is  ordinarily  confined  to  cases  in  which  the  remainder 
is  limited  in  terms  to  the  "heirs"  and  not  to  "chiklren"  or 

'O'Haraon   Wills,   27,  and  see  Com.  221.  The  rule  in  Sholly'.s  ca;  e, 

Clark  V.  Doorman's  Ex'rs,  18  Wall.  that  is,  the  technical  application  of 

493.  the  words  "heii-"  and  "heirs,"  is 

'Goodrich  v  .  Lambert,  10 Conn.  not  now  received  in  all  its  ori;,nnal 
448;  Baker  v.  Scott,  G2  111.  90;  But-  vi^or,  from  the  fact  that  it  ofte.i 
ler  V.  Huestis,  68  111.  001.  The  de-  operates  to  defeat  the  test-itor's  in- 
cisions of  the  local  courts  will  fur-  teiitidii.  and  in  the  United  States  it 
ni.sh  the  l»est  ^ide  for  coiiKtruiuf?  is  regarded  of  no  esja-cial  force  ex- 
estat'-H  under  wills,  as,  iM-tween  the  cejtt  a.s  an  aid  to  construction  and 
Stat4-ri,  iliainetrically(jp|M)s;'d  views  intention:  Blake  v.  Stone,  27  Vt. 
will  fr«!<iuei)tly  he  met  with  on  475. 
the  same  admitted  faetw.  *  Baker  v.  Scott.  02  III.  90;  Ebtute 

»Baker  v.  Scott, 02  111.  'JU;  1  Knit  of  Utz,  13  Cal.  200. 
27 


41S 


ABSTRACTS    OF    TITLE. 


'•issue."'  "Wlion  invoked,  as  a  rule  it  is  not  a  real  excep- 
tion to  the  fundamental  doctrine  that  tiie  intention  of  the 
testator  must  ^uide  in  interpretin<j:;  a  will;  it  sacrilices  a 
particular  intent  to  a  general  intent.  It  does  not  interpret 
a  will,  but  takes  etfect  when  the  intei'pretation  has  been 
ascertained." 

^  14.  Interpretation  of  Part  iciilar  Words  and  Plirasos. 
Though  the  testator  is  prt'sumed  to  use  tccliiiii-al  words 
according  to  their  technical  meaning,'  this  can  hardly  be 
asserted  as  a  rule,  or  should  it  be  so  asserted,  it  must 
1)0  taken  subject  to  that  other  all  i)owei-ful  rule  that 
the  intention  of  the  testator  must  prevail.'  The  construc- 
tion of  words  in  a  will  is  much  less  technical  than  that  of 
the  same  words  in  a  deed,  for  though  in  deeds  etfect  will 
always  be  given  to  the  true  intention  of  the  parties,*  yet 
the    words    employed    govern   such  intention,  while  in   a 


>  Akers  v.  Akers,  23  N.  J.  Eq.  26; 
Kstate  of  Utz,  43  Cal.  200.  But 
see,  Haley  v.  Boston,  108  Mass. 
576.  The  word  "children"  in  its 
usual  sense  is  a  word  of  purchase 
and  not  of  limitation,  and  is  al- 
ways to  be  so  regarded  unless  the 
testator  has  unniistakahly  used  it 
otherwise:  Stump  v.  Jordan,  54 
Md.  631;  2  Wash.  Real  Prop.  (4th 
Ed.)  603.  While  not  infrequently 
the  word  "heirs,"  or  even  the 
words  "  heirs  and  a.ssigns  forever  " 
are  held  not  to  operate  as  words 
<jf  limitation  because  corrected  or 
explained  by  woriLs  which  follow 
and  which  are  irreconcilable  with 
the  notion  of  descent  :  Shreve's 
Ca.se.  43  Md.  399. 

"  Yarnail's  Appeal,  70  Penn.  St. 
335.  Greater  latitude,  however,  is 
friven  in  the  construction  of  wills 
than  in  that  of  deeds,  and  courts 
will  look  to  the  whole  will.  Thus, 
the  rule  as  stated  in  the  text,  while 
of   general  controlling  efficacy  in 


deeds,  where  it  may  usually  be 
safeh'  applied,  is  subject  to  a  wide 
latitude  in  wills,  and  while  in 
some  States  it  may  be  rigidly  en- 
forced, in  the  majority,  when 
explanatory  words  are  found  in 
the  will  showing  the  intention  of 
the  testator  that  the  words  "  heirs," 
or  "  heirs  of  the  body"  are  em- 
ployed to  show  that  such  persons 
shall  take  imder  the  devise  as  a 
description  of  pei*sons,  they  will 
be  treated  as  words  of  purchase 
and  not  of  limitation:  Butler  v. 
Huestis,  68  111.  594.  When  such 
appears  to  be  the  testators  inten- 
tion "  heirs"  have  been  construed 
to  mean  "  children." 

2  France's  Estate,  75  Penn.  St. 
220. 

••Smyth  V.  Taylor,  21  HI.  296; 
Heuser  v.  Harris,  42  111.  425; 
Meade  v.  Jennings.  46  Mo.  91. 

»  Peckham  v.  Haddock,  36  HI.  38; 
Churchill  v.  Reamer,  8  Bush  (Ky.), 
256. 


WILLS. 


419 


will  the  intention  governs  the  words.'  The  use  of  the 
word  "  descend,"  does  not  operate  to  work  a  descent  in  the 
legal,  strict  sense  of  the  term,  as  inheritance  is  through 
operation  of  law;  its  employment,  therefore,  unless  some 
other  meaning  is  apparent,  is  to  be  taken  as  indicating  tlie 
desire  of  the  testator  that  his  property  shall  follow  the 
same  channel  into  which  the  law  would  direct  it."  "  Chil- 
dren" is  ordinarily  taken  in  its  primary  and  strict  significa- 
tion, and  does  not  include  grandchildren,'  unless  there  is 
something  in  the  context  to  show  that  the  testator  intended 
to  include  grandchildren,  or  unless  such  construction  is 
necessary  to  render  the  provisions  of  the  will  operative." 
"Issue"  means  heirs  of  the  bod3\*  "Heirs"  ordinarilj'' 
means  statutory  heirs,  of  every  kind  and  degree,"  but  under 
certain  circumstances  may  be  confined  to  children.'  The 
words  "  next  of  kin "  limit  the  devise  to  blood  relations, 
and  do  not  include  husband  or  wife,"  unless  accompanied 
by  other  words  clearly  manifesting  a  purpose  to  extend 
their  signification."  The  term  "relatives"  contains  no 
elements  of  legal  certainty.'" 

There    are,   however,  no  arbitrary   or   unbending   rules 
in   the   construction  of    the    words  of    a  will.     IS'o  two 


'  Edwarils  v.  Bidd,  43  Ala.  GGG; 
Brownfield  v.  Wilson,  78  111.  467. 

"Dennett  v.  Dennett,  40  N.  H. 
498. 

'  Hopson  V.  Commonwealth,  etc., 
7  BiiKh  (Ky.),  644;  MolFat  v.  Car- 
row,  7  Paige,  328;  Gernet  v.  Lynn, 
31  Pcnn.  St.  94;  Cumininga  v. 
Plummer,  94  Ind.  4(i3. 

*  F.-it  r.  Vanatu,  21  N.  J.  E(i.  ^1; 
IIouKhton  V.  Ki-n.lall,  7  Ali.ii 
(Mam.),  12.  Tlie  words  "chiMreii 
forever"  in  a  deviHe,  when  con- 
strued with  tlie  cont^'xt,  were  held 
to  be  wonis  of  inheritance,  an<I  to 
liave  Ix-en  u.scd  in  the  senHe  of 
lipifB.  S<H»  Moran  u.  Dillehay,  b 
Hii«h  (Kyj,  lltl. 


^  Kleppner  v.  Laverty,  70  Penn. 
St.  70. 

«  Richards  v.  Miller,  62  111.  417. 

'  Butler  V.  Huestis,  68  111.  594. 
Wliere  the  context  shows  that  tho 
testator  used  the  words  "  heirs"  in 
the  sense  of  children,  it  will  he  so 
construed:  Haverstick's  Aj)peal, 
103  Pa.  St.  394;  Hinton  v.  Milhurn, 
23  W.  Va.  166. 

"T.-wiisend  V.  RadchfTe,  44  111. 
4Ui;  Munlock  v.  Wanl,  67  N.  Y. 
3.S7;  Tillman  v.  Davis,  95  N.  Y.  17. 

"  llaraden  v.  Larrahee,  113  Mass. 
4-M. 

'"Ilandley  v.  Wrightwon,  60  Md. 
19y. 


•120  ARSTRACTS   OF   TITLT:. 

wills  arc  in  all  respects  alike.  AViiero  the  same  precise 
form  ot  cxj)ressi()n  occurs  as  may  have  been  the  subject  of 
some  former  ail  judication,  nnaffccted  In'  any  indication  of  a 
(lilFerent  intention  in  other  ])arts  of  the  instrument,  tlie 
courts,  with  a  view  to  certainty  and  stability  of  titles,  will 
follow  the  precedent;  yet,  the  cardinal  canon  still  holds 
trood,  that  the  intention  of  the  testator  of  each  will 
separately  is  to  be  gathered  from  its  ow^n  four  corners,' 
and  where  the  intention  satisfactorily  appears  it  should 
prevail  over  any   artilicial   rule    of  construction," 

§  15.  Words  Whicli  Pass  Real  Estate.  Sometimes 
wills  contain  no  specific  allusions  to  land,  or  particular  be- 
quests may  be  made  in  general  terms,  and  in  such  cases  grave 
questions  of  construction  arise  when  real  estate  is  claimed 
under  them.  The  liberality  of  courts  is  noW' here  more  man- 
ifest than  in  the  solution  of  these  questions.  The  words 
"  property  "  and  "  estate  "  when  used  in  a  general  sense,  are 
always  held  sufficient  to  embrace  all  the  testator's  property, 
real  as  well  as  personal,'  but  when  coupled  with  directions 
api^licable  only  to  personalty,  they  will  not  have  this  effect, 
nor  where  sul)sequent  particulars  clearly  indicate  that  the 
testator  had  only  personalty  in  contemplation."  The  word 
"elfects,"  though  savoring  strongly  of  personalty"  may, 
when  the  context  clearly  shows  the  intention,  as  when  used 
in  connection  with  the  word  "  real," '  be  sufficient  to  pass 

'  Provenchere's  Appeal,  67  Penn.  thing  in  the  context  to  show  that 

St.  4<i3.  ^  he  testator  intended  a  more   en- 

*  Kennedy  v.   Kennedy,  105  111-  larged  meaning. 

3',().  •'Smith  V.   Hutchinson,   51   Mo. 

•^  Fogg  v.    Clark,    1  N.    U.    103;  83. 

J,ir!:son  V.  Housel,  17  Johns.  281;  ^Indeed,  tliis  term  when  nsed  in 

"Whcaton    V.    Andrews,   23  Wend.  a  will,  is  generally  construed  to 

4"'2:  Hunt  u.  Hunt,  4  Gray  (Mass.),  refer  to   personalty    only,   unless 

llii):  Kom  u.  Cutler,   26  Conn.    4;  there  is  everything  in  the  context 

J''     roe  V.  Jones,  8R.  I.  526.     This  to  require  a  more  extended  appli- 

1*^  directly  contrary  to  the  earlier  cation. 

and    more  technical  rule,   which  ®As,  "all  my  effects,  real   and 

C'r.tlied  these  words  entirely  to  personal." 
J-  1  ^' .nalty  unless  there  was  some- 


"WILLS.  421 

land.'  "  Goods,""  accordinor  to  its  natural  s-i'fimmatical  and 
ni'diuarv  meaning,  does  not  include  lands.  General  usage 
has  given  it  a  meaning  as  consisting  of  personalty  onl}^,  and 
this  is  its  primary  legal  signification.*  The  context  may 
sometimes  enlarge  this  meaning,  and  where  it  satisfactorily 
appears  that  the  testator  intended  to  use  the  word  in  a  differ- 
ent and  more  comprehensive  sense,  so  as  to  embrace  real 
estate,  courts  will  give  effect  to  that  intent.  The  i)hraso, 
"  all  my  worldly  goods,"  if  used  without  specific  enumera- 
tion, may  reasonably  be  supposed  to  embrace  lands,  and  in 
some  instances  has  been  so  construed;  but  if  attempt  is  made 
at  designation  the  restricted  meaning  implied  from  such 
designation  will  prevail.' 

Tlie  question  will  occur  most  frequently  in  constructions 
of  the  bequest  of  the  residuum,  and  courts  seem  inclincil  to 
favor  any  construction  which  will  avoid  even  a  iJicrtial 
intestacy.* 

Yet  while  no  particular  words  are  necessary  to  pass  real 
estate,  enough  must  appear  to  evidence  the  intention  to 
convey,  and  words  can  not  be  supplied  to  meet  the  deficiency, 
even  though  they  may  have  been  omitted  by  what  miglit 
seem  to  be  palpable  error;'  and  where  specific  mention  is 
made  of  certain  pro])erty,  other  property  not  alluded  to  or 
covered  b\'  genei-al  terms  will  not  ])ass.'' 

§  16.  Liiuitations  and  Keniainders.  Nine  tenths  of  all 
the  litigation  concerning  testamentary  conveyances  is   oc- 

'  Paige  V.  F<just.  89  N.  C.  447.  2ie?'so««Z"  to  his  four  sons,  ajiil  in 

'  Farish  v.  Cook,  78  Mo.  212.  a  codicil  stated  tiiat  he  had  ilis- 

^'A.s    where    testator    hecjueaths  posed  of  1  lis   "estate,  reaZ  a/n/ iier- 

"all  ray  worldly  floods,  consisting  sonal,"  to  said  sons,  and  revoked 

of,"  etc.,  the  enumeration  descrih-  the  share  left  to  a  certain  son,  field. 

ing  only  iK-i-sonalty;  real  estate  not  that  the  court    could   imt  sii|i|ilv 

Hpe<-ifically  inentiimed  or  otherwise  the     words    "real     and  "     lici.nr 

referred  to  will  not  |)!i.ss.  "  personal"  in  the   will,  and  that 

♦Vernon    v.    Vernr)n,    5:{   N.    Y-  testator   died    intestate  as    to   his 

:i."il ;  Cate  t'.  Cranor,    '-Hi   Ind.    21)2;  real   estate,  except    a   portion    liy 

Damon  r.  Hihhen,  \'-i^>  Mass.  4'iH.  another  clause  specifi<'ally  devised. 

'Ah  wliere  testator,  after   mak-  (iraliam  r.  Craham,  2:i  \V.  V'a.  ;{({, 

ing  <-ertain    l»e<|uests  and   devises,  *  Farish   r.  rook.  7H  Mo.  212. 

gave   "all  tlx;  re-st  of   my  estate  — 


422  ABSTRACTS    OF   TITLE, 

casioned  l>v  questions  relative  to  the  construction  of  limita- 
tions anil  remainders.  The  subject  has  been  incidentally 
discussed  in  several  of  the  ])receding  parag-raphs,  and  in 
addition  to  what  has  been  there  said  little  can  be  stated 
without  entering  into  the  matter  at  greater  length  than  the 
exigencies  of  this  article  will  permit.  Local  statutes  are 
very  effective  in  the  settlement  of  such  questions,  so  far  as 
the  validity  of  the  remainder  limitt^d  is  concerned,  as  well 
as  the  persons  who  take,  when  particular  Avords  are  ac- 
corded a  statutory  definition. 

All  words  of  purchase,  as  "children,"'  "  issue,"  etc.,  create 
remainders  according  to  their  import,  while  "heirs"  w'hen 
construed  as  a  word  of  purchase,  designates  not  only  the 
persons  who  are  to  take,  but  also  the  manner  and  propor- 
tions in  which  they  take.'  The  utmost  liberality  is  displayed 
in  the  reported  decisions  construing  remainders,  and  the 
circumstance  that  the  first  taker  has  it  in  his  power  to  dis- 
})ose  of  the  whole  estate  and  thus  defeat  a  limitation  over,  is 
not  of  itself  conclusive  that  the  expectant  estate  is  void, 
M'hen  a  contrary  intention  ai)i>ears  from  the  will.' 

The  intention  of  the  testator  must,  in  all  cases,  be  carried 
out  when  such  intention  can  be  ascertained  from  the  will, 
and  in  no  case  can  the  intention  thus  ascertained  be  defeated 
by  a  technical  construction  of  the  language  employed." 
Limitations  to  survivors  have  produced  a  vast  amount  of 
litigation,  but  the  questions  arising  under  such  a  devise  may 
now  be  considered  as  well  settled,  and  the  general  rule  seems 
to  be  that  the  word  " survivor"  is  to  be  taken  in  its  natural 
and  literal  import,  unless  the  context  plainly  indicates  a  dif- 
ferent intention,  and  should  not  be  construed  as  equivalent 
to  the  word  "  other."'    "Where  the  courts  have  given  the 

'  Beacroft  v.  Strawn.  67  111  28.  "  Terry  v.   Wiggins,  2  Lans.  (N. 

«  Rand  r.  Sanger,  115  Mass.  124.  Y.)  272. 

Tlie  rules  of  descent  in  such  case  '  This  is  the  construction  which 

are  presumed  to  be  the  intended  now  obtains  both  in  England  and 

guide.  the  United  States:  2  Jar.  on  Wills, 

»  Terry  v.  Wiggins.  2  Lans.  (N.  648;  2  Redf.  on  Wills,  *372. 
Y.)  272:  Burleigh  v.  Clough.  .52  N. 
H.  267.     Compare  Clark  v.  Tenni- 
8on,  33  Md.  85. 


WILLS.  423 

word  "survivor"  tlie  force  of  ''other,"  it  has  been  done  to 
avoid  some  consequence  which  it  was  very  certain  the  testa- 
tor could  not  have  intended.' 

§  IT.  Devise  to  a  Class.  It  is  a  rule  of  the  common  hiAv 
that  a  devise  to  a  class  of  persons  takes  effect  in  favor  of 
those  who  constitute  the  class  at  the  death  of  the  testator, 
but  this  rule  has  been  greatly  modified  in  nearly  every 
State,  so  that  when  an  estate  is  devised  to  the  children  or 
other  relatives  of  the  testator,  the  lineal  descendants  of  a 
devisee,  wlio  dies  before  the  testator,  take  the  share  of  their 
ancestor.' 

§  IS.  Gift  of  the  Income  of  Realty.  It  is  a  well  set- 
tled rule  of  law  that  a  gift  of  the  income  of  real  estate 
or  of  the  "  rents  and  profits,"  or  "  benefits  "  is  a  gift  of  the 
real  estate  itself.  Those  to  whom  the  testator  has  given  the 
income  for  life  will  take  a  life  estate,  and  those  to  wlioiu  he 
has  given  the  pei'[)etual  income  will  take  a  fee  simple  estate." 
ISuch  gift,  however,  to  accomplish  this  purpose  must  be  with- 
out qualification  or  limitation,  and  in  order  to  determine 
whether  there  is  such  (jualification  or  limitation,  recourse 
must  be  had  to  the  whole  will,  with  the  view  of  ascertain- 
ing the  sense  in  whicli  the  terms  were  used  by  the  testator. 
"When  it  a]i])ears  from  other  ])arts  of  the  will  that  the  fee  is 
otherwise  dis})osed  of,  such  terms  can  not  be  held  to  carry 
the  fee.* 

§  19.  Devise  with  Power  of  Disposition.  "Where  an 
estiite  is  given  to  a  person  generally  or  indefinitely,  with 
a  power  of  disposition,  it  carries  the  fee,  unless  the  testa- 
tor gives  to  the  lirst  taker  an  estate  for  life  only,  and  an- 
nexes a   power  of  disposition   of   the  reversion.     In  that 

'  LfeiniriK  v.  SliiTratt.  2  H:in>  t<'rfii>ld  ?'.  IIsi.sk ins,  33  Mo.  ^02;  Earl 
(EnK.),  14;   2   Jar.     on    Wills,.  O-W;    '  v.  Howe,   35    Me.    414;    Coiiit-r    r. 

ron.sult  Pjixsnmrc'H  A|)p<'al,  23  Pa.  Grimscy,  30  Ohio  St.  17;  Dnisadou- 

8t.  3H1;  Moor.'  r.  I.vouh,  25  Wend.  v.  Wild.-,  03  Pa.  St.  17(1;  JIoiKan  r. 

119;    .Martin    r.    Kirl-y,    11     Cratt.  Popi-,  7  Col  hv.  (Tenn.)  511. 
(Va.)  07.  n'ollit-r  r.  Crimscy.  30  Ohio  St. 

*JaniieHon   r.    Hay,  40  Mo.  .^lO;  17;    Morgan    v.    Pope,    7     Coldw. 

Sniih-y  v.  Hail.-y,  Ml  Harh.  HO.  (Tc-nn.)  541. 

•liccd  V.  lU'itil,  9  MuHS.  372;  But- 


424  AIJSTKACTS    OF    TITLE. 

case,  the  express  limitation  for  life  will  control  the  oper- 
ation of  the  power,  and  i)revcnt  it  from  enlai-ging  the  estate 
to  a  fee.  This  is  the  doctrine  laid  down  by  Kent,'  and  the 
Enulish  writers,'  and  substantially  followed  by  later  Ameri- 
can decisions.^  The  (piestion  often  arises  where  life  estates 
are  created  by  imi)lication,  as  where  the  testator  devises 
property  generally,  without  a  specification  of  the  quantity 
of  interest,  and  adds  some  power  of  disposition  with  a  re- 
maindrf  or  limitation  over.  In  such  case,  where  an  absolute 
power  of  disposition  is  annexed  to  the  gift,  a  limitation 
over  is  of  no  elfcct,'  but  where  the  power  of  disposal  is  not 
an  absolute  power,  but  a  qualified  one,  conditioned  upon 
some  certain  event  or  puqiose,  and  there  is  a  remainder  or 
devise  over,  the  words  last  used  restrict  and  limit  the  Avords 
lirst  used,  and  reduce  Avhat  was  apparently  an  estate  in  fee 
to  an  estate  for  life  only."  Where  there  is  a  devise  for  life^ 
in  express  terms,  a  power  of  disposal  annexed  can  not 
enlarge  it  to  a  fee;"  nor  is  it  opposed  to  any  rule  of  law  to 
create  a  life  estate  with  a  power  to  sell  and  convey,  and 
limit  a  remainder  after  its  termination.'  To  satisfy  the 
doubts  that  must  naturally  arise  in   construing  devises  of 

'  4  Kent  Com.  *535.  Jar.  on  Wills  (Bigelow),   *879.     A 

'  Cruise  Dig.  tit.  §  38,  c.   13,   §5;  devise  with  power   of   disposition. 

Jar.  on  Wills  (Bigelow),  *873.  although  jn-oviding  for  an  ultimate 

'  Ramsdell  v.  Ramsdell,  21  Me.  remainder  of  what  i-emains  undis- 

288;  Jones  v.   Bacon,  68  Me.    34;  posed  of  at  the  death  of  the  first 

Smith  V.  Bell,  6  Pet.  68;  Gifford  v.  taker,  will  vest  a  fee,  or  a  right  to 

Choate,  100  Mass.  346;  Burleigh  v.  convey  in  fee:  Lyon  v.  Marsh,  116 

Clough.  52  N.  H.  267;  Jackson  u.  Mass.  233. 

Robblns,    16  Johns.    537;  Ayerr.  « Hamlin  v.  Express  Co.,  107  111. 

Ayer,   128  Mjiss.   575;  Downey  v.  443. 

Borden,    36  N.  J.   L.   460;  Benker  ''Ward  v.  Amory,  4  Curtis,  42r); 

V.  Jacoby,  36  Iowa,   273;  Hamlin  Jar.    on    Wills    (Bigelow),     *873; 

V.  Express  Co. ,  107  111.  443.  Welscli  v.  Savings  Bank,  94  111.  191 ; 

■•Rand   v.    Meir,   47    Iowa,  607;  Jassey  t'.  White,  28  Ga.  295;  Dow- 

Seigwald  v.  Seig\vald,  37   111.    430;  ney  v.  Borden,  36  N.  J.  L.  460.     A 

Roseboom  v.  Roseboom,  81  N.  Y.  different    nile    prevails    in  some 

356.  States:    See  Hazel  v.   Hagan,   47 

'Stnartr.Walker.il    Reporter,  Mo.  277. 
533;  SleiTill  v.  Emery,  10  Pick.  512; 


WILLS.  425 

this  clinrficter,  it  is  necessary  that  the  entire  daiise  rehating 
to  the  devise  be  substantially,  and  in  many  cases  literally, 
set  forth,  and  as  the  construction  will  often  be  inlluenced 
by  other  parts  of  the  instrument,  a  corresponding  treatment 
will  be  required  of  all  such  portions  as  directly  or  indirectly 
concern  the  particular  devise  under  consideration.  A  con- 
veyance by  a  devisee  for  life,  but  with  an  absolute  ])ower  of 
disposal  of  the  reversion,  will  vest  in  the  grantee  of  such 
devisee  an  estate  in  fee,'  while  in  case  the  power  has  not 
been  exercised,  the  land,  on  the  death  of  sucii  devisee,  goes 
to  the  heirs  of  the  devisor.'  An  important  distinction  will, 
however,  be  observed  between  an  absolute  and  unconditional 
power  of  disposal  in  the  discretion  of  the  devisee  and  a 
power  restricting  the  disposition  both  as  to  time  and  man- 
ner. Tlie  devise  of  an  estate  for  life,  with  authority  in 
the  devisee  to  dispose  of  same  by  last  will  and  testament, 
does  not  convey  absolute  ownership,"  nor  would  the  further 
fact  that  the  will  devising  same  charged  the  payment  of 
the  debts  on  the  devisee  be  sufficient  to  enlarge  the  life 
estate  to  a  fee  simple.*  The  right  of  testamentary  dispo- 
sition is  a  mere  i)ower,  and  though  the  authorities  are  not 
altogether  lia^;monious  as  to  the  right  of  the  devisee  to  exer- 
cise such  ])ower  by  deed,  it  would  yet  seem  that  a  warranty 
deed  in  fee  simple,  executed  by  the  devisee,  which  made  no 
reference  to  the  will  by  which  the  power  of  disposition  was 
given,  and  contained  no  evidence  of  an  intention  to  execute 
the  power,  conveys  oidy  the  life  estate  of  the  devisee.'  The 
question  seems  to  turn  upon  the  fact  of  intention  in  tlie  donee 
of  the  i)0wer  to  execute  it,  and  when  there  are  co-existing  in- 

'  Funk  r.  EKgktston,   92  111.  515;  Jar.  on  Wilis  (lii^'.-low).  *87:J. 

Ilazrl  V.  Ha;;an,  47  Mo.  277;  I^'vy  'Dunning  v.  Van  Dust-n,  47  In«l. 

V.  Griditlis,  «.",   N.  C.  230;  Lyon   v.  423;  Funk  v.  E^'^jlcston,  !J2  111.  ."il.-). 

Marsh,  110  Mass.  232.  U   maybe  laiil   <lo\vn  as  a  j^i-iifral 

■'  Fairnian  r.  IJcal,  14  111.  244.  rulf,  that  in  all  rases  where  l»y  the 

'  Hryaiit  r.  Christian,  ^H  Mo.  JW;  terms  of  the  will  there  has  lieen  an 

an«l   we  T<rry  i".  WiKK'ns.  2  Laiis.  «'.\|»ress  limitation    of   an    estate  to 

(N,  Y.)  272.  thefirst  tak.r.  f.ulife,  all.ialimiUl- 
*  Dunninj^  w.  Van  I)usen,47  Ind.  tion  over,  any  K'''1''I'<'>1  expressions 

423;  Juiifjcy    v.  White,  2«   (Ja.  21)5;  apiian-ntly  k'^  '"K   tl>''   Unant   fctr 


420 


ABSTRACTS    OF   TITLE. 


terosts,  one  witliin  and  tlicotlicr  without  tho  power,  it  would 
seem  that  tho  intention  to  execute  the  power,  wlicther  by 
deed  or  will,  must  be  a))])arent  and  clear,  but  that  intention, 
however  manifested,  whether  directly  or  indirectly, ])ositively 
or  by  just  implication,  will,  when  established,  render  a  con- 
veyance by  the  devisee  valid  and  operative.'     Ko  state  of 


life  an  viiiliinitod  powor  over  tho 
instate,  but  which  do  not  in  express 
terms  do  so,  must  be  regarded  as 
referring  to  the  life  interest  only, 
and,  therefore,  as  limited  by  such 
interest:  AVelsch  v.  Beliville  Savgs. 
Bank.  94  111.  191. 

'  Funk  r.  Eggleston.  92  111.  51.^), 
In  this  case,  the  subject  of  a  devise 
for  life  with  power  of  disposition, 
is  very  exhaustively  treated  in  a 
learned  and  able  opinion  by  Baker, 
J.  The  fundamental  principle  de- 
ducible  froui  the  English  decisions 
is  that  there  should  be  a  certain 
a.«icertainment  of  the  intention  of 
the  donee  of  the  power  to  act  un- 
der the  ix)wer.  Three  classes  of 
cases  arose  in  which  it  was  dem- 
onstrated to  an  absolute  moral 
certaintj'  th(>re  was  an  intention  to 
execute  the  power,  and  these  were, 
(1,)  when  there  was  a  reference  to 
the  power;  or  (2,)  to  the  subject  or 
property  covered  by  the  power; 
or  (3,)  when  the  instrument  would 
be  inoperative  without  the  aid  of 
the  power.  The  cases  ranging 
themselves  in  one  or  the  other  of 
these  three  classes,  it  was  judi- 
cially announced  in  some  of 
the  cases  that  there  could  be  no 
execution  of  a  power  unless  the 
case  fell  in  one  or  the  other  of  these 
three  classes.  See  Sir  Edward 
Clere's  case,  6  Coke,  17;  Standen  v. 
Standen,  2  Ves.  Jr.  589.  But  in 
furtherance    of    the   general  rule 


that  the  intention  of  tlic  tt'st;itor 
(in  case  of  disposition  by  will)  is 
the  pole  star  to  guide  in  the  inter- 
pretation, the  English  rule,  which 
requires  the  existence  of  one  of  the 
three  elements  above  enumerated, 
is  made  altogether  subordinate  and 
secondary  in  its  character,  and  if 
circumstiuices  arise  that  indicate 
clearly  the  intention  of  the  donee 
to  work  by  the  power,  the  artificial 
rule,  predicated  upon  former  expe- 
rience, must  give  way,  and  the 
primary  and  fundamental  rule, 
which  requires  only  that  the  inten- 
tion must  be  clear  and  manifest, 
will  prevail.  "The  main  i)oint," 
says  Mr.  Justice  Story  (Blagge  v. 
Miles,  1  Srory,  427),  "  is  to  arrive 
at  the  intention  and  object  of  the 
donee  of  the  power  in  the  instru- 
ment of  execution,  and  that  being 
once  ascertained,  effect  is  given  to 
it  accordingly.  If  the  donee  in- 
tends to  execute,  and  the  mode  be 
in  other  respects  unexceptionable, 
that  intention,  however  manifested, 
will  make  the  execution  valid  and 
operative."  But  tiie  intention  nmst 
be  clear  and  apparent,  so  that  the 
trnnsaction  is  not  fairlj'  susceptible 
of  any  other  interpretation.  If  it 
be  doubtful,  under  all  the  circum- 
stances, then  the  doubt  will  prevent 
it  from  being  deemed  an  execution 
of  the  power:  Blagge  v.  Miles,  1 
Story,  427;  Dunning  r.  Van  Dusen, 
47  Ind.  423. 


WILLS.  427 

facts,  in  an  examination  of  title,  presents  graver  questions, 
or  questions  more  difficult  of  solution, 

§20.     Indeterminate  Pevise.     Owing  to  the  liberal  con- 
struction now  accorded  to  wills  as  Avell  as  swee])ing  statu- 
tory enactments  relative  to  the  limitation  of  estates,  fewer 
questions  will  now  arise  in  regard  to  the  quantity  or  dura- 
tion of  estates  than  formerly.     Wills  drawn  by  the  testator, 
or  holographic  wills,  frequently  fail  to  express  clearly  such 
testator's  intentions,  and  as  they  are  usually  copied  from 
the  ever  ready  "  form  book  "  and  adapted  to  his  wants,  they 
not  infrequently  fail  to  expressly  define  the  nature  or  extent 
of  the  estate  he  seeks  to  convey.     A  devise  indeterminate  in 
its  terms  and  without  words  of  limitation,  which,  standing 
alone  and  unaided  by  statute,  would  create  only  an  estate 
for  life,  will  be  enlarged  to  a  fee  by  the  imposition  of  a 
charge  upon  the  person  of  the  devisee,  or  on  the  quantum 
of  the  interest  devised  to  him; '  but  not  if  the  premises  are 
merely  devised  subject  to  a  charge.-     Where  the  charge  is 
on  the  estate,  and   there   are   no  words  of  limitation,  the 
devisee  takes  an  estate  for  life  only,"  but  where  the  charge  is 
on  the  person  of  the  devisee  in  respect  of  the  estate  in  his 
hands,  he  takes  a  fee  by  implication.*     If  the  charge  be  on 
the  person  of  the  devisee,  the  amount  is  unimportant,  if  the 
sum  is  to  be  paid  absolutely.'     But  this,  it  will  be  under- 
stood, applies  only  to  indefinite  devises.     Where  the  estate 
is  given  for  life  in  express  terms,  and  some  other  dotei-min- 
ate  estate  is  expressly  given  or  arises  by  necessary  imi)lica- 
tion  from  the  language  of  the  devise  over,  the  rule  is  inop- 
erative to  enlarge  sucli  an  estate  to  a  fee.' 

'  Tracy  ?-.  KiUKirn,  3  Cush.  (Mass.)  Funk  v.  EK^'cston,  1)2  III.  TATy,  l^fer- 

5.17;  Baicer  v.  liridKO,  12  Pick.  27;  ritt  v.  Brantly,  8  Flu.  22(»;  Cook   v. 

Barheydt  v.   Barheydt,  20  Wund.  Holmes,     11     Mass.    528;  Wait  v. 

676.  liL-ldiiiK.  2-1  Pick.  129. 

»  Hawkins  on  Wills,  131.  » (Jol  Hit's  Case,  6  Itcj..  US;  2.1ann. 

»Foxr.  Ph.-l|»s,  17  Wend.  393.    By  on  Wills.  171;. Jackson  i-.  .M.-nill,  (5 

force  of  the  st-ituU-  a  Kfiwral  dc-  Johns.  1H(J;  Bjirlicydt  v.  Barln  yilt, 

vis*' will  |);iss  all    the  t<'Htat')r's  ch-  20  Wend.  WJ;  Jackson   v.    Harris, 

tat<',   including   the    fee,    urdess   a  12  Wend.  k;}. 

contrary  int*-nt  fairly  appears.  *2  Janii.  on  Wills,  173;(iroves  r. 

♦  Ju/:kwjn  v.  Bull,  10  Jcjhns.    148;  Cox,  40  N.  J.  L.  40. 


42S  Ar.STRACTS    OF   TITLE 

^  21.  Di'viso  on  Condition  rrecedciiit.  This  frcf|iiontIy 
occurs  where  land  is  given  on  condition  that  the  devisee  pay 
certain  legacies,  or  perform  certain  acts,  etc.,  and  iicrfoi'in- 
ance  of  the  conditions  are  essential  to  the  vesting  of  the 
estate.'  "Where  the  conditions  arc  limited  as  to  time,  and 
are  not  performed  within  that  time  the  devise  does  not  take 
elfect,"  but  becomes  inoperative  and  void.  A  devise  upon 
condition,  therefore,  always  raises  an  inquiry  in  pais  upon 
the  examination  of  a  title  proffered  by  the  devisee,  and 
before  ])assing  or  accepting  same,  a  requisition  should  be 
made  for  further  information  relative  to  the  due  perfoi-mance 
of  the  condition. 

§  22.  Conditional  Devise — Marriage.  Estates  for  life  are 
frequentlv  devised  to  surviving  husl)ands  or  wives,  subject  to  a 
defeasance  in  the  event  of  a  second  marriage.  The  law  is  well 
settled,  both  in  England  and  this  country,  that  conditions  in 
general  restraint  of  marriage,  wdiether  of  man  or  woman,  as 
a  general  rule,  are  regarded  in  law  as  being  against  public 
policy  and  therefore  void.  "  But  this  rule,"  says  Alvey,  J., 
''  has  never  been  considered  as  extending  to  special  restraints, 
such  as  against  marriage  with  a  particular  person,  or  before 
attaining  a  certain  reasonable  age,  or  without  consent.  Nor 
has  it  ever  been  extended  to  the  case  of  a  second  marriage 
of  a  woman;  but  in  all  such  cases  the  special  restraint  by 
condition  has  been  allowed  to  take  effect,  and  the  devise 
over  held  good  on  breach  of  the  condition.  A  condition, 
therefore,  that  a  widow  shall  not  marry,  is  by  all  the  author- 
ities held  not  to  be  unlawful."  '  In  the  cases,  observes  the 
same  authority,  a  distinction  is  taken  between  those  Avhere 
the  restraint  is  made  to  operate  as  a  condition  precedent, 
and  those  where  it  is  expressed  to  take  effect  as  a  condition 
subsequent,  and  the  decisions  have  generally  been  made   to 

'Neviusu.  Gourley,   95  111.  206.  (2d  hearing);  Den  v.  Messenger,  33 

A  coiirt  of  chancery  will    never  N.  J.  L.  490. 

vest  an  estate  when,  by  reason  of  a  » Bostick  v.  Blades,  15  Reporter, 

condition  precedent,  it  will  not  vest  399:    2   Powell  on     Devises.     283; 

in  law:   Id.  Clark  v.  Tennison,  33  Md.  85. 

« Nevius  V.  Gourley,   97   lU.   356 


WILLS.  420 

turn  upon  the  question,  whether  there  be  a  gift  or  devise  over 
or  not.  But  if  the  devise  be  to  a  person  until  he  or  she 
shall  marry,  and  upon  such  marriage  then  over,  this  is  a  good 
limitation  as  distinguished  from  condition;  as  in  such  case 
there  is  nothing  to  carry  the  interest  beyond  the  marriage. 
There  can  be  no  doubt,  therefore,  that  marriage  may  be 
made  the  ground  of  a  limitation  censing  or  commencing, 
and  this,  whether  the  devisee  be  man  or  woman,  or  other 
than  husband  and  wife.' 

§23.  Contingent  Komaiuders.  Under  devises  similar  to 
those  mentioned  in  the  preceding  paragraph,  many  ques- 
tions will  arise  relative  to  the  devise  over,  which,  according 
as  the  phraseology  used,  will  be  either  a  vested  or  contin- 
gent remainder.  These  questions  are  of  far  greater  impor- 
tance than  those  discussed  in  the  last  paragraph,  for  thi 
reason,  tliat  the  former  contemplate  only  an  estate  of  lim- 
ited duration,  whereas  the  latter  relate  to  the  fee.  The 
examiner  should,  therefore,  exercise  the  greatest  care  in 
transcribing  all  devises  of  this  character,  and  for  greater 
certainty  it  is  recommended  tliat  they  be  presented  with 
little  or  no  abbreviation.  The  essence  of  the  contiuirent 
remainder  is,  that  it  is  limited  to  take  effect  on  an  event  or 
condition  that  may  never  happen  or  be  performed  or  which 
may  not  happen  or  be  performed  until  after  the  determina- 
tion of  the  preceding  particular  estate.'  Thus  where  a  de- 
vise over  operates  at  the  death  or  marriage  of  the  first  devisee 
to  such  of  testator's  children  as  shall  then  be  living,  this 
would  give  a  contingent  remainder  to  such  of  the  children 
living  when  such  contingency  of  death  or  marriage  haj)- 
pened.  The  children  of  such  testator  who  may  luive  died 
after  tlie  testator  and  prior  to  the  liappening  of  tlie  con- 
tinfrency  woul<l  take  no  estate,  nor  woidd  their  heirs,*  and 
the  fact  that  the  words  "  to  them,  their  heirs,"  etc.,  followed 
the   mention   of   the  children  would  not  affect  the  result 

'  Bostiok  w.  Blndi-H.  \r,    INiHirf-r,  »  Bon.  L:i\v  Diet.   I.T). 

:'.'.»'J;  Arthur  r.    Colu.   r,0    M,|.    loij;  •  Oln.-y  r.  Hall,  21  I'ick.  311;  Erii- 

Hrown  r.  Brown,  tl  N.  Y.  "ioT.  iiiisoii  r,  Wliiiilscy,  55  Mo.  25t. 


430  ABSTRACTS    OF   TITLE. 

Stilted,  for  such  words  do  not  describe  the  devises  but  the 
(juantitv  of  their  estate,  and  merely  show  the  estate  taken 
by  the  jirevious  words  to  be  fee.' 

§  24.  ContiniJ:eiit  Reversion.  A  contingent  reversion 
niav  l)e  created  either  by  deed  or  will,  Init  more  fre(|uently 
occurs  under  the  latter.  It  is  a  possibility  of  reinvesture  in 
the  grantor  or  his  heirs,  and  occurs  where  a  conveyance  is 
made  to  one  for  life  or  years  with  a  contingent  remainder. 
Thus,  in  case  of  a  devise  to  an  unmarried  woman,  and  to  the 
"  heirs  of  her  body  "  or  "  children;"  here  the  devisee  named 
would  take  a  life  estate  only,  Avhile  a  contingent  remainder 
is  created  in  favor  of  such  heirs,  wlioj  when  born,  woukl 
take  the  fee.  The  Avill  in  such  case,  effectually  divests  the 
heirs  of  the  testator  of  all  estate  but  a  contingent  reversion, 
dependent  upon  the  devisee's  dying  without  issue.' 

§  25.  Devise  to  Married  Woman.  In  a  former  chapter ' 
the  sul)ject  of  conveyances  to  married  women  was  quite 
fuUv  discussed  and  the  general  principles  there  laid  down 
will  apply  Avith  equal  force  to  a  devise  by  will.  The  gen- 
eral rule  of  construction,  in  the  absence  of  statutory  provis- 
ions to  the  contrary  is,  that  in  order  to  exclude  the  marital 
rights  of  the  husband  from  attaching  to  property  coming  to 
the  wife  during  coverture,  or  belonging  to  her  at  the  time 
of  marriage,  an  intention  on  the  part  of  the  testator  to  vest 
in  the  wife  a  separate  estate  ought  to  appear  from  the  terms 
or  provisions  of  the  will  so  clearly  as  to  be  beyond  the  reach 
of  reasonable  controversy.*  This  is  ordinarily  accomplished 
by  the  insertion  of  technical  words,  as  "  sole  and  separate 
use,"  or  other  words  of  similar  import,  while  the  same  end 

'Thompson    v.   Ludington,    104  Steel  r.  Cook,  1   Met.  281;  and  the 

Mass.  193.  right  to  same  may  be  asserted  by 

-  Frazer  v.  Supervisors  Peoria  Co. ,  the  heirs  of  sucli  residuary  devisee 

7-i  111.  282;  2  Bl.  Com.  164;  Blair  v.  after  his  death:   Clapp  v.  Stough- 

Vanblarcum,  71  111.  290.     This  re-  ton,  10  Pick.  462. 

versionary  interest  may  itself  be  ^  See  Chap.  XVI,  §  1,  2. 

the  subject  of  devise:    Austin  v.  '•Schouler  Dom  Rel.  (2d  Ed.)189; 

Cambridgeport,  21  Pick.    215;  and  2  Perry  on  Trusts,  §  647;  Hill  on 

will  pass  under  a  residuarj'  clause:  Trustees,  611. 


AVILLS.  431 

may  be  attained  by  provisions  excluding  the  marital  rights 
of  the  husband,  or  by  giving  to  the  wife  powers  concerning 
the  estate  inconsistent  with  the  disabilities  of  coverture.' 

§  20.  Devises  to  Executors  in  Trust.  It  is  a  rule  in 
equity,  that  the  language  eni})loyed  in  devises  must  be  such 
as  to  show  that  the  object  is  certain  and  well  defined,  and 
that  the  beneficiaries  be  either  named,  or  capalile  of  easy 
ascertainment  within  the  rules  of  law  which  are  applicable 
to  such  cases;  and  further,  that  the  trusts  be  of  such  a 
n:iture  that  the  court  can  direct  their  execution:  failing  in 
this  the  property  will  fall  into  the  residue  of  the  estate." 
Devises  in  trust  are  frequently  made  to  executors,  the  object 
being  usually  to  promote  some  educational,  charitable  or 
religious  purpose,  the  beneficiary  being  an  institution 
devoted  to  the  furtherance  of  those  objects,  though  it  is  not 
uncommon  to  make  beneficial  devises  to  individuals  in  the 
same  manner.  It  is  usual,  though  not  necessary,  to  specific- 
ally name  or  describe  the  intended  beneficiaries,  and  numer- 
ous authorities  sustain  devises  to  executors  or  trustees  which 
confer  u])on  them  authority  to  divide  the  same  aniong  such 
persons  as  they  may  select  from  certain  classes  wliich  are 
designated,  and  among  such  children  or  relatives,  who  are 
intended  to  be  provided  for,  whom  they  may  deem  proper.' 
AVhere  the  devise  is  too  indefinite  to  give  certainty,  or  is 
such  a  trust  that  the  court  can  not  execute  it,  resort  is 
usually  had  to  a  court  of  chancery  for  a  construction  of  the 
will,  and  where,  as  a  result,  the  devised  ])ro])erty  falls  hack 
into  the  residuum,  such  proceedings  become  a  necessary  link 
in  the  chain  of  the  title  to  such  particuhir  ]>r()j)(M'ty.  A 
devise  in  trust  for  such  object  of  benin'olence  and  lilx'rality 
as  the  trustee,  in  his  discretion,  shall  approve,  would  have 

'  V;iil  V.  Vail.  49  Conn.  52.  *  Pow.t  v.  Ca-ssidy,  79  N.  Y.  002; 

'H.)lmi-8  r.  M«-U'l,  02   N.  Y.  332;  Hull  v.  liull,  H  i\mu.  4H;    Norris  v. 

Powell  on  DcvJHcs,  418;  Darlinjj  v.  Tli(nn|)H<in'H  KxrH. ,  19  N.  J.  R<i.  307; 

K«.g»'rH.  22  W.-nd.  494;  2  Story  K«|.  M.I><.ULrliliii     v.     McLoughlin,    30 

Jur.    S  979;   Wlifccler  v.  binilh,  U  liarl*.  4.j«. 
How.  (,L'.  b.;  35. 


4^2  Ar.STKACTS   OF   TITI.K. 

tlio  ofToct  last  mentioned.'  So,  also,  Avonld  a  power  of 
appointment  to  one  to  give  or  devise  property  "among  sucli 
benevolent,  religious,  or  charitable  institutions  as  he  may 
think  proper,""  be  vague  and  indefinite.  A  power  of 
disi)osition,  to  such  members  of  a  specified  branch  of 
a  family  as  the  trustee  miglit  consider  most  deserving,  is 
void,  for  tiie  same  reason.'  A  direction  to  give  a  fund  in 
"]irivatc  charity  "  is  too  indefinite,*  or  to  give  what  they 
might  choose,'  but  when  the  beneficiaries  are  capable  of  iden- 
tification, although  not  named,  the  trust  will  be  valid,  and 
a  testator  may  commit  to  competent  persons  the  power  to 
designate  avIio  of  certain  persons  sliall  participate  in  a  speci- 
fied portion  of  his  estate,  and  in  what  proportions  the  prop- 
erty shall  be  divided." 

§  27.  IJequcst  to  Devisee  by  Description.  The  observa- 
tions of  the  last  section  are  in  a  measure  applicable  to 
direct  bequests,  for  a  devisee,  whether  a  corporation  or  a 
natural  })erson,  may  be  designated  by  description,  as  well 
as  by  name.'  It  is  only  necessary  that  the  description  of  the 
devisee  be  l)y  words  that  are  sufficient  to  denote  the  person 
meant  by  the  testator,  and  to  distinguish  him  from  all  other 
persons.*  In  such  cases,  however,  a  judicial  construction  is 
necessary  in  order  to  fully  perfect  the  title  of  the  imperfectly 
designated  devisee,  and  the  decree  rendered  upon  such  con- 
struction, together  with  the  will,  forms  the  basis  of  the 
devisee's  claim  of  title.  Devises  to  corporations  are 
particularly  subject  to  the  rule  above  stated,  as  the  testator 
frequently  fails  to   insert   the    strictly  legal    name  of  the 

'  Morice  u.  Bishop  of  Durham,  548;   Owens  u.  Miss.  Soc. ,  14  N.  Y. 

10  Ves.  ^Eng.)  r)22.  386;  2  Redf.  on  Wills,   779;  White 

»  Norris  v.  Tlionipson's  Exrs. ,  19  v.  Fisk,  22  Conn.    31 ;  Lef cvre  v. 

N.  J.  Eq.  307.  Lefevre,  59  N.  Y.  434. 

3  Stubbs  V.  Sargon,  3  Myl.  &  Cr.  '  Lefevre  v.  Lefevre,  59  N.  Y.  434. 

(Eng.  Ch.)  507.  « Button  v.  Am.  Tract.  Soc'y,   23 

*  Ommanny  v.  Butcher,  1 T.  &  R.  Vt.  330;  McAllister  v.  McAllister,  46 

(Eng.  Ch.)  260.  Vt.   272;  Minot  v.  Cui-tis,  7   Mass. 

'Wetmore  v.  Parker,  52  N.  Y.  411;   Holmes    v.   Mead,    52  N.   Y. 

450.  332;  Gai'dner  v.  Heyer,  2  Paige,  11. 

•Williams  v.  Williams,   4  Seld. 


WILLS.  433 

corporation  tlirongh  inadvertence,  ignorance  or  mistake. 
Parol  evidence  is  ahvays  admissible  to  remove  latent  am- 
biguities, and  where  there  is  no  person  or  corporation  in 
existence  precisely  answering  to  the  name  or  description  in 
the  will,  parol  evidence  maj'be  given  to  ascertain  who  were 
intended  by  the  testator.  "A  corporation,"  sa3's  Allen, 
J.,  "  may  be  designated  by  its  cor])orate  name,  by  the  name 
by  Avhich  it  is  usually  or  popularly  called  and  known,  by 
a  name  by  which  it  was  known  and  called  by  the  testa- 
tor, or  b}'  any  name  or  description  by  which  it  can  be  dis- 
tinguished from  every  other  corporation;  and  when  any 
but  the  corporate  name  is  used,  the  circumstances  to  enal)le 
the  court  to  appl}'  the  name  or  descri})tion  to  a  particular 
corporation  and  identify  it  as  the  body  intended,  and  to 
distinguish  it  from  all  others  and  bring  it  within  the  terms 
of  the  will,  may,  in  all  cases,  be  proved  by  parol."  ' 

§  28.  Precatory  Trusts.  Precatory  trusts  grow  out  of 
words  of  entreaty,  wish,  expectation,  request,  or  recommen- 
dation frequently  employed  in  wills,  and  the  authorities, 
both  English  and  American,  are  conclusive,  and  in  the  main 
harmonious,  that  a  trust  will  be  created  by  such  words  as 
''hope,"  "wish,"  "request,"  etc.,  if  they  be  not  so  modified 
bv  the  context  as  to  amount  to  no  more  than  mere  suirires- 
tions  to  l)e  acted  on  or  not  according  to  the  caprice  of  the 
immediate  devisee;  or  negatived  by  other  expressions  indi- 
cating a  contrar}''  intention ;  and  the  subject  and  object  be 
sufliciently  certain.'  An  aljsolute  gift  to  one  person,  accom- 
]>anied  with  a  request  to  appro])riate  a  particular  sum  to 
another  person,  creates  in  the  immediate  devisee  a  trustee- 
ship, to  the  extent  of  such  sum,  nor  does  tlie  absolute  gift 
contravene  either  an  ex]»ress  or  im])lied  trust  annexed  to 
tlje  gift,  as  it  is  a  common  thing  to  invest  tiie  legal  title  and 
trustccshii)  in  the  same  person  who  is  to  receive  the  benefit 

'I>'f«'vrc  r.  I>'f.vn'.  r,U  N.  Y.  IJTK;  Hill  on  Trusties.  92:  Pcitv  (.11 
4;J4;  St.  LiiI;<''h  HoiiU!  J".  ArtHi/n  for  Trusts,  I;  Ciill»rt  v.  L'lmiiiii,  lit 
IiidiKi-nt  F.iii:il<-s.  W  N.  Y.  191.  Conn.  'W^. 

'Bolionr.  Uan<'t"«  K.\'r,  79   Ky. 
2b 


431  AnSTKACTS    OF   TITLE. 

ill  the  event  of  the  fiiiliire  of  the  trust.  It  is  equally  well 
settled,  however,  that  a  mere  direction  by  a  testator,  that  a 
devisee  shall  i)aya  legacy,  does  not  thereby  create  a  charge 
vn  the  land,  and  to  accomplish  this  there  must  be  express 
words  or  necessary  implication  from  the  whole  will,  that 
such  was  the  intention.' 

There  has  bjen  a  tendency  manifested  by  some  courts  to 
restrict  the  application  of  this  rule,  or  to  qualify  it,  and,  in 
some  instances,  to  reject  it  altogether,  and  to  adopt,  as  more 
reasonalile,  the  ])resumption  tliat  words  precatory  in  form 
are  meant  to  imply  a  discretion  in  the  donee,  and  should  be 
so  construed  unless  clearly  shown  to  be  used  in  an  impera- 
tive sense  from  other  parts  of  the  will;''  but  the  weight  of 
autliority  sustains  the  principles  first  stated,  and  precatory 
words  are  generally  held  to  be  creative  of  trusts,  when  the 
contrary  does  not  appear  from  the  context  or  by  necessary 
implication.' 

§  29,  Perpetuities.  Attempts  are  frequently  made  in 
wills  (though  seldom  in  deeds)  to  create  what  the  law 
regards  as  perpetuities,  and  this  occurs  whenever  there  is  a 
susjiension  of  the  power  of  alienation  for  a  longer  period 
than  a  life  or  lives  in  being  at  the  creation  of  the  estate,*  or 
of  such  lives  in  being  and  twenty-one  years  and  nine  months 
at  the  farthest,"  the  rule  varying  somewhat  in  different 
States.  In  construing  dispositions  of  property  with  refer- 
ence to  the  statute  against  perpetuities,  the  rule  is  settled 
that  an}""  limitation  is  void  as  in  violation  of  that  statute,  by 
which  the  suspension  of  the  power  of  alienation  Avill  not 
necessarily,  under  all  possible  circumstances,  terminate 
within  the  prescribed  period.  It  is  not  enough  that  it  may 
terminate;  it  must,  and  if  by  any  possibility,  the  vesting  of 

'  Cable's  Appeal,  9  Reporter,  57;  =  Pennock's  Case,  20  Pa.  St.  272. 

Lupton  V.    Lupton,   2  Jolins.    Ch.  '"  Reed's  Adm'r  v.  Reed,  30  Ind. 

614;  Chapin  v.  Gilbert,   19  Conn.  313;  Warner  v.  Bates,  98  Mass.  274. 

342;    Pennock's  Estate,   20   Penn.  *  Schettler  v.   Smith,  41   N.  Y. 

St.  268;  Walter's  Appeal,  95  Penn.  328;  Knox  v.  Jones,  47  N.  Y.  389. 

St.  305;  Taylor  v.  Dodd,  58  N.   Y.  '  Stephens  v.  Evans,  30  Ind.  39; 

335;  Read  v.   Gather,  18  W.   Va.  see  1  Jar.  on  WUls,  226. 
263. 


WILLS.  435 

the  estate  may  be  postponeil  beyond  the  statutory  period, 
the  Hmitatiou  will  be  void.'  In  all  cases,  where  the  limita- 
tion is  void  as  being  too  remote,  the  Avill  should  be  construed 
as  if  no  such  clause  were  in  it,  and  the  first  taker  will  hold 
his  estate  discharged  from  the  limitation  over." 

§  30.  Lapsed  Devise.  AVhen  a  devisee  named  in  a  will 
dies  during  the  lifetime  of  the  testator,  the  devise  is  said  to 
lapse  and  does  not  go  to  the  heirs  of  such  deceased  devisee,  but 
falls  baxik  into  the  estate  of  the  testator.  The  rule,  though 
frequently  acknowledged  to  be  productive  of  great  hardship, 
and  to  be  often  contrar}'  to  the  intention  of  the  testator,  is 
too  firmly  established  to  be  questioned.  It  is  regarded  as  a 
rule  of  necessity,  and  merely  amounts  to  this :  That  if  there 
be  no  devisee,  there  is  in  effect  no  devise.' 

§  31.  Devises  for  the  Payment  of  Debts.  Land  de- 
vised to  trustees  for  the  payment  of  debts  and  legacies  is 
usually  regarded  in  equity  as  money,*  but  the  heir  at 
law  has  a  resulting  trust  in  such  land,  after  the  debts  and 
legacies  are  paid,  and  may  restrain  the  trustee  from  selling 
more  than  is  necessary  to  pay  such  debts  and  legacies;  or 
may  pay  them  himself  and  have  conveyance  of  that  portion 
of  the  land  not  sold  in  the  first  case,  and  the  Avhole  in  the 
latter,  which  property  will,  in  either  case,  be  land  and  not 
money."  Equity  will  extend  the  same  privilege  to  the 
residuary  legatee.'  A  mere  charge  upon  land  stands 
upon  a  different  footing,  and  the  executor  possesses  no 
power  to  sell  or  dispose  of  the  land  in  such  case  except  by 
license  or  direction  of  the  probate  court.'  The  land  in  the 
hands  of  the  devisee  is  burdened  by  the  charge,"  and  should 
he  renounce  the  devise  such  land  will  descend  to  the  heir  at 

>  SchettlfT   V.  Smith,   41    N.    Y.  Story  E.j.  g  GrjS;  Dill  v.  Wi.siicr,  88 

328;  Stf-phens  v.  Evans,  30  Ind.  39;  N.  Y.  153. 

I^rrillartl  v.  Coster,  .l   Pai«<',   172;  » Craig  v.  L(>slio,  3  Wlicat.  403. 

Ilawh'y  V.  Northampton, 8 M;iK8.  3.  •Craig  r.  Ix-slie,  3  Wheat.  403. 

»  Woo.!  V.  Griflin,  40  N.  H.  234;  'Dill  v.  Winner,  «H  N.  Y.  \r,;\. 

Anflernon  v.  (Jrahle,  1  Ark.  136.  Hiridloy  v.  (Jridh-y,  24  N.  Y.  13(». 

•DaviH*  Hi'irH  r.  Taul.  0  Dana.  r,2.  Harris  t-.  Fly,  7  I'aigi',  421. 

•Craig  V.  LcMlie,  3  Wheat.  403; 


4o<5  ABSTRACTS   OF    TITLE. 

law  sulijoct  to  tlic  cluiri^e;'  Init  the  executor  having  no 
status  as  a  trustee,  takes  no  interest  in  same,  and  no  i)0\ver 
can  be  ini])lietl  from  the  uiere  charge  of  the  debts  and  lega- 
cies upon  tlie  lands  devised." 

§  32.  Chiirges  on  Lands  Devised.  Real  estate  is  not,  as 
of  course,  ciiarged  with  the  payment  of  legacies.  It  is  never 
so  charged  unless  the  testator  intended  it  should  be,  and 
that  intention  must  be  either  expressly  declared,  or  fairly 
and  satisfactorily  inferred  from  the  language  and  disposi- 
tions of  the  will.'  Mere  directions  to  pay  delfts  and 
legacies  is  not  sufficient  to  create  a  charge,'  but  where  the 
testator  devises  his  real  estate,  after  payment  of  debts  and 
legacies,  or  with  a  direction  that  debts  and  legacies  be  first 
paid,  then  the  real  estate  is  charged  with  the  payment  of 
them  and  they  become  a  lien  upon  the  land.*  If  the  dev- 
isee accepts  the  devise,  he  becomes  personally  liable  for  the 
leo-acies,'  which  still  remain,  however,  a  charge  upon  the 
land.^  "When  the  same  sentence  or  clause  by  which  land  is 
devised  imposes  on  the  devisee  the  duty  of  paying  an  annu- 
ity, and  no  other  fund  is  provided  out  of  which  the  pa3"ment 
is  to  be  made,  the  annuity  is  a  charge  upon  the  land;'  and  in 
like  manner,  where  a  testator,  without  creating  an  express 
trust  to  pay  legacies,  makes  a  general  residuary  disposition 
of  his  whole  estate,  blending   the   realty   and   personalty 

' Birdsall  r.  Hewlett,  1  Paige,  32.      says  Mr.    Redlield,    "that  where 

*  In  re  Fox,  52  N.  Y.  530.  lands  are  held  by  subsequent  bona 
^Okfson's  Appeal,  59  Pa.  St.  99;      ^(/c  purchasei-s  for  value,  but  who 

Kirkpatrick  v.  Chestnut,  5  S.   C.  are  obliged  to  trace  title  through  a 

216;  Lupton  i\  Lupton.  2  Johns.  Ch.  devise,  whereby  a  charge  is  created 

014;    Cable's  Appeal,   9  Reporter,  upon  the  land  for  the  payment  of 

57.   Legacies  are  primarily  payable  legacies,  such  purchasers  will  be 

out  of  the  personal  estate.  constructively  affected  with  notice 

*  Taylor  v.  Dodd,  58  N.  Y.  335;  of  such  charge,  and  equity  will  en- 
Walter's  Appeal,  95  Pa.  St.  305.  force  it  upon   the   land  in    their 

'Lupton  V.  Lupton,  2  Jolins.  Ch.  hands:  "   2  Redf.  on  Wills,  *210, 

6U;  Wood  V.  Sampson,  25  Gratt.  citing  Han-is  v.  Fly,  7  Paige,  421; 

(Va.)  &45.  Wallington  v.  Taylor,  Saxton,  314; 

'Birdsall  r.  Hewlett,  1  Paige,  33;  and  see  Aston  v.  Galloway,  3  Ired. 

Burch  V.  Burch.  52  Ind.  136.  Eq.  (N.  C.)  126. 

'"It  seems  to  be  well  settled,'*  'Merrill  r.  Bickford,  G5  Me.  118. 


WILLS.  437 

together  in  one  fund,  tlie  real  estate  is  constructively 
cliaimHl  with  the  legacies.'  In  every  instance,  therefore, 
where  legacies  are  directly  or  constructively  charges  or  liens 
upon  the  realty,  satisfactory  assurance  must  be  given  that 
the  legacies  have  been  paid  or  the  lien  released  before  the 
title  is  accepted  by  a  purchaser  from  the  devisee.  In  this 
connection  an  important  distinction  should  be  noted,  with 
regard  to  the  estate  possessed  by  the  devise,  between  snch 
legacies  as  constitute  a  personal  charge  upon  the  devisee, 
and  such  as  are  expressly  charged  upon  the  estate.  Where 
an  estate  is  devised  subject  to  the  payment  of  legacies,  if  tlie 
legacies  are  matle  a  personal  charge  ujion  the  devisee,  an  ac- 
ceptance of  the  devise  operates  to  make  such  legacies  a  per- 
sonal liability  of  the  devisee,  while  he  will  take  the  estate 
devised  as  a  purchaser  in  fee;  but  if  the  legacies  are  charged 
uj^on  the  estate  devised,  the  devisee  does  not  take  as  a  ])ur- 
chaser,  but  as  a  benelicial  devisee." 

§  33.  E<iuitable  Conversion.  It  is  a  fundamental  j)rin- 
ciple  in  equity,  long  established  and  universally  recognized, 
that  where  the  testator  directs  that  his  real  property  be 
converted  into  money  on  or  before  a  given  time,,  it  be- 
comes, at  la\v,  money,  and  will  be  treated  as  personalty 
from  the  moment  of  his  death.  In  such  case,  therefore,  tlie 
heir  takes  no  interest  in  the  land,  which  is  held  by  the 
executor  as  other  personal  property,  and  can  make  no  con- 
veyance of  same  that  will  defeat  or  impair  the  rights 
of  a  purchaser  from  the  executor.  Yet  to  cifect  this 
change  the  intention  <jf  the  testator  must  appear  by 
une(iuiv(x;al  declaration.  There  must  be  an  imperative 
and  unmistakai^le  direction  to  sell,  and  if  the  power  to  sell, 
or  the  sale  itself  is  coupled  with  terms  or  do])en(lent  upon  a 
contingency,  there  is  no  conversion  until  the  terms  have 
been  com|)lied  with  or  the  contingency  has  haj)])ened,  and, 
as  courts  are  always  averse  to  sanctioning  a  change  in  the 

'I>>wi.s  V.   D.irliiiK.    l'5  1I"\v.   1;  •Funk  i'.  Egglc-btun,  W  111.  515. 

Nicholi*  V.  P<iStl<tliw!iit<',  2  DjiII. 
131;  Hill  t,n  TruhUH-H,  Hfk);  (;iil- 
laght-r'H  ApiH-ui,  48  I'a.  St.  121. 


438  ABSTRACTS    OF   TITLE. 

(liuilit y  of  an  estate,  if  there  be  any  doubt  as  to  the  intention 
of  the  testator  the  original  character  of  the  i)roi)erty  will  be 
retained.' 

§  34,  The  Kt'sidujiry  Clause.  In  a  majority  of  wills 
there  is  inserted  at  the  close  a  general  devise  of  everything 
that  the  testator  has  not  succeeded  in  disposing  of  in  former 
parts  of  the  will,  which  is  called  the  residuary  clause.  This 
portion  of  the  instrument  should,  as  a  rule,  be  copied  entire, 
as  it  is  often  of  vital  im])ortance  in  determining  questions  of 
title  under  lapsed  devises  and  of  lands  not  specifically  granted 
or  alluded  to  elsewhere  in  the  instrument.  Where  the. 
language  of  a  residuary  clause  has  suilicient  scope  and  ex- 
tent, evincing  the  intent  of  the  testator  to  take  up  and  carry 
into  the  residuary  estate  all  of  his  estate  remaining  at  his 
death  undis})osed  of  for  any  reason,  the  residuar}'-  clause  will 
receive  and  pass  a  lapsed  legacy  and  devise,"  as  well  as  such 
as  may  fail  for  want  of  use  of  proper  language  to  create  the 
same,  or  to  designate  the  devisee.'  But  when  the  residuary 
clause  does  not  by  its  own  terms  take  in  a  lapsed  legacy  or 
devise,  so  as  to  disclose  the  intent  of  the  testator  to  pass 
the  lapsed  estate  into  the  residue,  the  rule  is  different.' 
Void  and  illegal  legacies  or  devises  come  under  the  rule 
first  above  stated,'  and  generally,  unless  a  contrary  intention 
is  manifested,  the  residuum  will  take  and  pass  everything  of 
the  nature  above  indicated." 

A  different  rule,  however,  applies  to  the  residue  itself,  for 
if  a  gift  of  the  residue,  or  any  part  of  it  fails,  whether  by 

'  Orrick  v.  Boelim,  49  Md.  104;  595.     A  distinftion  Ls  madein  some 

Peter  v.  Beverly,   10   Pet.  (U.   S.)  States  between  legacies  and  devises. 

533.  The   legac}-   falling  into  the  resid- 

'  Youngs  u.  Youngs,  45  N.  Y.  254;  uum;    the  lapsed    devise  descend- 

Patt^rson  v.  Swallow,  8  Wr.  (Pa.)  ing    to    the    heirs:    See  Orrick  v. 

490;  Hillis  v.  Hillis,  16  Hun  (N.  Y.),  Boehm,  49  Md.  2. 

76.     Local  statutes  will  sometimes  *  Thayer  v.  Wellington,  9  Allen 

materially  affect  the  doctrine  stated  (Mass.),  283.     The  residuary  clause 

in  the  text.  will  carry  the  estate  devised  in  a 

'Loveringt'.  Allen,  129  Mass.  97.  clause  which  the  testator   Las  re- 

*Yard  r.  Murry,  86  Pa.  St.  113.  voked  by  striking  it  out  of  his  will. 

'Burnet  v.  Burnet,  30  N.  J.  Eq.  Biglow  v.  Gillott,  123  Mass.  102. 


■sviLLS.  439 

lapse,  illegality,  or  revocation,  to  the  extent  that  it  fails,  the 
will  is  inoperative,  and  the  subject  of  the  gift  passes  to  the 
next  of  kin  accordino:  to  the  statute  of  descents.' 

§  35.  Codicils.  A  codicil  is  defined  as  some  addition  to, 
or  qualification  of,  a  last  will  and  testament."  Where  it  is 
in  irreconcilable  conflict  with  the  will,  it  must  prevail  as  a 
revocation,  since  it  is  the  last  expression  of  the  testator's 
intent  in  the  disposition  of  his  property."  Ordinarily,  how- 
ever, a  codicil  imports  not  a  revocation,  but  an  addition  to,  or 
explanation,  or  alteration  of  the  will,  in  reference  to  some 
l)articular,  and  assumes  that  in  all  other  particulars  it  is  to 
be  in  full  force  and  effect.  The  authorities  fully  establish 
the  proposition  that  a  codicil  which  does  not  in  terms  revoke 
a  clause  in  the  will,  but  modifies  it  in  some  of  its  features 
entirely  consistent  with  the  retention  of  its  other  provisions, 
will  be  allowed  to  have  that  partial  effect,  and  the  clause 
thus  changed  will  remain  as  the  embodiment  and  expression 
of  the  testator's  intent,  while  if  duly  executed  Avith  all  the 
formalities  required  by  law,  it  will  operate  to  confirm  and  re- 
publish the  rest  of  the  will,*  unless  the  testator  declares  that 
he  does  not  intend  that  it  shall  have  that  effect.'  It  will  thus 
be  seen  that  the  codicil  plays  a  most  important  part  both  in 
the  disposition  of  the  property  and  in  the  matter  of  validat- 
ing that  wliich  has  preceded  it,  and  which,  by  reason  of 
defective  execution  or  other  circumstances,  has  become  in- 
operative.' It  is  an  established  rule  not  to  disturb  tlie  dis- 
positions of  the  will  further  than  is  absolutely  necessary  to 
give  effect  to  .the  codicil,'  aiid  the  intent  of  the  testator  is 
always  sought  to  give  effect  to  both  instruments  wlien  they 
cano|)erate  in  perfect  harmony."  Ihit  where  the  absolute  and 
unqualified  gift  in  the  codicil  is  incompatible  with  the  dis- 

'  IJurnet  V.  Burnet,  30  N.  J.  Ivj.  (S  Jolins.  Cli.  375;  1  Jarm.  dm  Wills, 

595.  7s. 

'  1  Bou.  T«iw  Diet.  2a5.  '  Van  rorllaiidt  r.  Kip,  1  Hill.  5!)0. 

•Hallyliurton  v.  Carwjn,   15   Ru-  '•Set'   Wiiih.  on  Kxi-cutoia,  'J7;  1 

j»<>rt<T.  15J.  Jaiiii.  on  Wills,  7H. 

*<)'Jf;ira  on  Wills,  0;    Hiown  v.  Mjirrn.  on  Wills,  'M'.],  not(>. 

riark,  77  N.  Y.  :«!!>:  Van  ('(.rtlaii. It  "  Halh  l.urloii  f.  L'aihun,   15    Ki-- 

V.  Kip,  1  Hill,  51KJ;  Mo«>«t»  v.  Whitf,  poiUr,  151. 


440  AIJSTUACTS    OF   TITI.E. 

position  of  the  land  mado  in  the  uill,  and  nuist  liavc  a  rc- 
vokini,^  ellicacy  or  be  itself  nn^atoiy,  the  will  must  yield  to 
tiie  codieil.'  A  codieil  deprnding  upon  the  body  of  the  will 
for  interpretation  or  execution  can  not  bo  established  as  an 
independent  will,  when  the  will  itself  has  been  revoked/ 

§3(5.  Formal  lU'iiuisites.  There  arc  a  number  of  indis- 
pensable requisites  to  a  valid  Avill,  which,  thoui^li  of  the 
highest  ini])ortance  generally,  do  not  rctjuirc  more  than  pass- 
ing mention  in  this  work.  These  requisites  do  not  relate  to 
form,  but  oo  to  the  verv  substance  of  the  instrument. 
They  relate  mainly  to  the  testamentar}^  capacity  of  the 
testator  as  dcjiendent  on  soundness  of  mind,  etc.,  and  to 
his  surroundings  and  the  effect  of  fraud,  undue  influence, 
etc.  All  of  these  questions,  however  important  they  may 
be,  do  not  arise  ordinarily  in  the  examinaticm  of  a  title  de- 
rived through  or  under  a  will,  for  they  are  all  supposed  to 
have  been  duly  investigated  during  the  probate  and  satis- 
factoril}'^  answered  before  the  will  was  permitted  to  be- 
come operative  as  a  conveyance.  With  respect  to  the 
strictly  formal  parts  a  very  simple  and  informal  document 
will  be  sustained  as  a  will,  w'here  the  writing  relied  on  has 
been  executed  in  conformity  to  the  statute,  and  show^s  upon 
its  face  a  declaration  by  the  testator  that  same  is  his  will.' 
The  essence  of  a  will  is,  that  it  is  a  disposition  to  take  ef- 
fect after  death,  and  the  form  of  the  instrument,  therefore, 
is  immaterial  if  its  substance  is  testamentary.*  The  statute 
usually  requires  the  paper  to  be  signed  b}'  the  testator,  but 
the  signature  may  be  original   or   by  adoption,'   and,  as  a 

'Wainwright  V.  Tuckerman,  120  still  if  its  purpose  be  testamentary , 

Mass.  232;  Vauglian  v.  Bunch,  53  and  it  is  only  to  be  consuuiniated 

Miss.  513.  by  the  death  of  the  maker,  ellect 

'Youse  V.  Forman,  5  Bush  (Ky.),  will  bo  given  to   it  as  a  wiU  and 

337.  not  as  a  deed:  Gillham  v.  Mustin, 

» 3  Wash.  Real  Prop.  *  681 ;  Turner  42  Ala.  3G5. 

V.    Scott,   51    Pa.    St.    120;    Bur-  •»  Wilson's  Ex'rs  r.  Van  Leer,  103 

lington  University  v.    Barrett,  22  Pa.  St.  600. 

Iowa,  60;  Wall  v.  Wall,  30  Miss.  91.  *  A  mark  has  been  held  a  good 

Although  an  insti-ument  be  in  the  signature  even   when  the  statute 

form  of  a  deed,   and  called  such,  uses    the    word    subscribed:     Van 


WILLS.  441 

rule,  it  must  be  attested  bv  two  or  more  subscribing  wit- 
nesses, who,  at  the  testator's  request,  atfix  their  signatures 
in  his  presence."  As  the  execution  and  publication  are 
also  matters  of  strict  proof  in  the  probate  court  they  may 
l)e  presumed  to  have  been  in  conformity  to  law  after  the 
will  has  been  duly  presented  and  admitted  in  such  court. 
Should,  however,  the  examiner  observe  palpable  defects  of 
form  they  should  be  presented  in  the  abstract  that  proper 
inquiries  may  be  founded  on  them. 

§  37.  Abstract  of  Wills.  An  eminent  English  convey- 
ancer^ once  said,  that  he  could  scarcely  admit  of  a  will 
being  abstracted  at  all,  and  strongly  recommended  that 
it  be  copied  instead,  in  order  that  counsel  might  have  an 
opportunity  of  judging  by  the  context  as  well  as  by  the  par- 
ticular words  of  the  devise  or  bequest."  The  reason  assigned 
by  the  English  conveyancer  is  a  good  one,*  yet  in  prepar- 
ing the  abstract  of  a  will  it  is  not  usually  necessary  that 
the  entire  instrument  should  appear,  but  only  such  parts  as 
have  special  or  general  reference  to  the  property  in  ques- 
tion. JNlodern  wills  in  many  instances,  and  ancient  ^vills 
unif<.r.nly,  contain  a  preamble  dedicating  the  testators' 
souls  to  God,  expressing  the  soundness  of  their  minds,  the 
health  or  debility  of  their  bodies,  and  other  particulars  of 
no  special  importance  and  which  have  no  necessary  con- 
nection or  relation  to  tlie  subject  of  the  examination,  and 
wljich  may  in  all  cases  be  safeh'  omitted.  The  bequests  and 
gifts  of  personalty  are  always  omitted,  save  where  a  legacy 
constitutes  a  charge  ujjon  tlie  land,  in  which  case  it  would  be- 
come material.  Devises  of  realty,  other  than  the  sul)ject 
of  the  examination,  may  be  advantageously  omitted,  but 
the  residuiiry  clause,  though  couched  in  general  terms,  should 
invariably  be  iiLsertod.     The  language  employed  by  the  will 

Honau-yck  v.  Wiese,  44  Barl).  101;  *  ]Mr.  Haitoii. 

Jackwjn  V.  Jar-kson  :{9  N.  Y.  IT):}.  »  Mi.ort-  on  Ahst.  .10. 

'C'onhult  H(ij>|Hr'H  Will,  1  Tuik.  *  Tliis  ohsi-i  vjilion   dciivcs   nilili- 

(N.  Y.  Sur.)  ;57M;  Lawnii'c's  Will,  tioiial  force  froni  the  fait  that,  for 

Ifl.  24:J;  Holloway  v.    UuUoway,  51  iiicrly    real    tHlatc   w  ills   wt-ru  uo» 

III.   l.'i'J.  pr.pvf.l  ill  IJij^laiul. 


412  ABSTRACTS    OF   TITLE. 

usido  from  the  strictly  t'onual  jiarts,  should  bo  clos(>ly  if  not 
literally  lV)lluwe(l,  as  well  in  respect  to  the  [)roi)erty  devised 
as  the  }>articular  estate  therein  granted.  The  essential 
features  of  a  modern  will  consist  of  the  parties,  testator, 
legatees  and  devisees;  the  legacies  which  are  a  charge  on 
land;  the  specific  devises;  the  trusts  and  powers;  the  appoint- 
ment of  executors;  the  residuar\''  clause;  and  the  execution 
and  attestation.'  In  drawing  the  synopsis  the  general 
form  of  presenting  conve3\ances  by  deed  is  followed  as 
closely  as  may  be;  the  particular  words  employed  in  creat- 
ing the  estates  devised  are  given,  and  all  inartificial  expres- 
sions rendered  with  literal  exactness.  Imperfect  designa- 
Hon  of  persons  or  property,  and  manifest  omissions,  errors 
and  irregularities,  are  noted  in  the  same  manner  as  in  case 
of  deeds.  The  execution,  if  regular,  may  be  passed  without 
notice,  as  the  proof  of  probate  constitutes  the  proof  of  tlie 
due  and  ]n'o])er  execution  of  the  will,  yet  where  the  execu- 
tion is  manifestly  erroneous,  or  not  in  com})liance  witii 
law,  it  is  recommended  that  same  be  shown  as  fully  as  in 
case  of  defective  execution  by  deed,  and  su))plemented  by 
the  special  proof  offered  on  the  hearing  before  the  probate 
court. 

§38.  Method  of  Arrangement.  There  are  two  methods 
of  showing  abstracts  of  wills:  one  (in  case  of  record  as  a 
conveyance)  as  an  inde]ieiident  circumstance,  the  same  as 
other  conveyances,  and  forming  a  separate  link  in  the  chain; 

'  Mr.  Preston  says    (with    refer-  are   created;    the    conditions,     or 

ence  to  the  method  of  abstracting  conditional  limitations  by  way  of 

wills)  the  points  to  be  attended  to  executory    devise,     or    otherwise, 

are  to  show  to  whom  the'  lands  annexed    to    the    devise    or    ap- 

are  devised;  the  words  used  in  de-  pointment;  the  charges  imposed  on 

scription  of  the  lands;  the  words  of  the  devisee;  the  indemnity,  if  any, 

limitation  by  which  the  estate   is  against  seeing  to  the  application  of 

devised,  the  power,   if  any,  in  pur-  the  purchase  money,  or  mortgage 

suance  of  which  the  devise  is  made;  money;  such  powei-s,  if  any,  as  are 

the  words  of  modification,   or  of  material  to   the  title;    and  when 

severance  of  the  tenancy,  if  there  leaseliold  lands  are  the  subject  of 

be  any;  the  woi'ds  of  qualification  the  title,  the  appointment  of  exec- 

which  may  abridge  or  defeat  tlie  utors:"    Prest.  on  Abst.  IbO. 
estate;  the  uses  and  trusts,  if  any 


WILLS.  443 

the  other  in  connection  with  the  proceedings  had  in  the  pro- 
bate court  in  relation  to  the  ])robate  of  the  will  and  the 
settlement  of  the  estate.  Either  method  may  be  adopted  as 
will  best  serve  the  examiner's  purpose,  but  it  is  believed  the 
former  method  possesses  advantages  over  the  latter,  and  is 
that  which  should  be  adopted  whenever  the  will  has  been 
recorded  as  directed  by  law.  In  the  event  of  the  first  named 
method  being  used,  the  proof  adduced  before  the  probate 
court,  or  a  summary  thereof,  should  also  be  apjicnded,  such 
proof  being  required  by  statute  to  be  recorded  with  the  will. 
The  proceedings  relative  to  the  settlement  of  the  estate  then 
follow  as  a  separate  showing.  AVhen  the  latter  method  is 
employed,  a  digest  of  the  will  should  be  inserted  at  the  be- 
ginning of  the  synopsis  of  the  proceedings.  When  convey- 
ances have  been  made  by  heirs  or  devisees  prior  to  ]-)rol3ate 
or  record,  the  chronological  arrangement  should  follow  the 
dates  of  execution,  rather  than  of  proof  or  record,  except  in 
the  case  of  j)ost  obit  conveyances. 

§  39.  Practical  Examples.  Following  this  will  he  found 
a  practical  example  of  an  abstract  of  a  will  and  ])roof  of  i)ro- 
bate.  The  will  selected  is  of  the  most  simple  form,  and  no 
attempt  has  been  made  to  illustrate  special  clauses,  though 
an  example  of  these  occurs  in  the  form  given  in  connection 
with  the  abstract  of  prol)ate  pnjceedings.  The  proof  of  pro- 
bate is  that  now  in  use  in  Wisconsin,  Minnesota  and  other 
western  States,  and  will  serve  to  indicate  the  method  of 
showing  these  matters  even  where  the  record  of  ])rouf  is 
different : 


Last  Will  and  TeMamenV 

of 

T/Ufjoaa  W.   \Votj<on^ 

deceased. 


D<ihul  Oct.  10,  ISSO. 
Adiaiited  to  Probate^  ^f<Jy  ■/, 
18S:i. 

Recorded  J>d;/  1,  JSSX 
J>(>()k  JOO,  jit/i/c  ftfiO. 
J)in:(t.s,  thilt  nil  jil.st  dilifs,  in- 


'  If  flcHirr'd,  tlic  ordinary  caption      imlic  atrd  hy  its  name  in  llio  mar- 
of  u  d*-**!  may  Ix'uwd;   an, — to — ,       gin. 
the  iiuturu  uf  tliu  iibttrunient  liciug 


444r  ABSTRACTS   OF   TITLE. 

clitd'ing  funeral  cxjycnscs  and  ex^)e}iscs  of  administration,  le 
paid  by  his  executor^ 

Gives  and  hcqxieaths  to  his  wife,  Annie  ]Vatson,  one  tlwxi^ 
sand  di>Uars  annual} y,  to  he  paid,  etc.,  [set  ovt  such  legacies 
as  constitute  a  chanje  on  the  land'\  together  with  snndry  other 
bequests  and  legacies. 

Devises  and  bequeaths  to  his  son,  George  Watsoji,  etc.,  [set 
out  the  sj)ecijic  devises.] 

Gives,  devises  and  bequeaths  all  the  residue  and  remainder 
of  his  estate  to,  etc.,  [set  out  the  residuary  bequests  verbatim.'] 

Ajq^oints  John  Williams  his  executor,  etc.,  [note  the  trusts 
and  j'oicers,  if  any.] 

Add  facts  of  execution.* 

If  the  proof  of  the  will  is  appended,  as  is  ordinarily  the 
case,  this  would  doubtless  be  sufficient  to  show  testator's 
death,  but,  if  desired,,  a  note  embodying  such  information 
may  be  appended,  thus : 

JVote: — By  the  7'ecords  and  files  hi  the  office  of  the  County 
Court  of  Kenosha  County,  Wis.,  it  appears  that  Thomas  W. 
Watson  died  on  or  about  April  S8,  1883 /  that  letters  testa- 
mentary were  granted  to  John   Williams,  May  1,  1883. 

"Where  a  codicil  is  appended  it  should  be  abstracted  as  a 
separate  instrument  and  its  terms  fully  set  forth,  particu- 
larly when  it  tends  to  revoke  any  provision  of  the  will,  or 
alters  the  prior  disposition  of  the  real  estate  of  the  decedent. 
In  such  case  sa}^ :   "Appended  to  the  foregoing  is,"  and  then 

'  "  Tlie  direction  of  pajmients  of  '  The  examiner  will   notice 

debts  an4  funeral  expenses,"  ob-  whether  any  of  the  witnesses  are 

serves  Mr.  Redfield,"  is  now  merely  named  in  the  will  as  devisees  or 

formal,  except  that  as  it  may  some-  legatees,   and  in  case  of  a  corre- 

tinies  aid  in  the  construction  of  a  spondence  of  names  show  the  same, 

will,  by  showing  that  the  subject  As  a  rule,  any  person  taking  any 

of  the  testator's  debts  was  brought  benefit  under  a  will   is  excluded 

distinctly  to  his  mind,  at  the  time  from  being  a  witness  to  same,  or 

of  executing  his  will:"  1  Redf.  on  else  the  provision  in  theii"  favor  is 

Wills,  *G74.  rendered  void. 


WILLS.  445 

as  in  case  of  the  original,  follow  in  the  margin  with,  "  Codicil 
to  the  last  will  and  testament,"  etc.,  giving  the  date  and 
substance  of  the  codicil.  "With  all  wills  filed  for  record 
as  conveyances  the  law  requires  the  "proof  of  probate"  to 
be  also  filed.  Such  proof  is  generally  in  the  shape  of  a 
certificate  by  the  judge  or  clerk  of  the  probate  court,  and  a 
synopsis  of  same  should  immediately  follow;  thus, 

Appended  is  : 


Certificate 
Edward  Martin^ 


Proof  of  v'ill. 

Dated  July  1,  1SS3. 

Recites  that  on  the  loth,  day  of 
County  Jud(je  of  Ktnosha      March,  18S3,  at  a  regular  term 
Cou7ity,   \Vis.  J   of  the  County  Court  of  Kenosha 

County,  Wis., pursuant  to  notice 
duly  given  as  required  ly  laio,  William  Jaclson  a7id  James 
Smith,  subscrihing  witnesses  to  the  last  toill  and  testament  of 
Thomas  W.  Watson,  late  of  the  County  of  Kenosha,  deed, 
whcch  is  '•''hereto  annexed,''''  were  produced,  sworn  and  exam- 
ined {and  the  said  will  heing  contested,  and  other  witnesses  as 
well  for  the  contestant  as  for  the  proponent  of  said  icill,  hav- 
ing Ijeen  produced,  sworn  and  examined),^  and  proof s  having 
heen  heard  before  said  court,  and  the  court  having  thereupon 
found  that  said  instrument  was  in  all  things  duly  executed 
as  his  last  will  and  testament  l>y  said  Thomas  W.  Watson, 
on  the  10th  day  of  October,  18S0;  that  he  was  then  of  full  age, 
and  of  sound  mind,  and  that  said  instrument  was  duly  sub- 
scribed and  attested  {in  his  presence).^ 

Thereupon  said  instrmnent  being  duly  proved,*  was  by  said 
co^trt  duly  allowed,  a7id probate  thereof  granted  as  and  for 

'  This  of  course  depends  on  local  memory  at  the  time  of  executing 

Ltws.  it,   this,    in   tlic  ahscnce    of    any 

'  Where  a  will  is  properly  signed  proof    of    fraud,    coinjiulsion,   or 

by  the  t<^*tator  and   two  or  more  other  imjimpcr    comluct,  is  sulli- 

att<'«ting  witnesscrt,  hutli  of  whom  cienttomaki'iiuta;*?*i'm(«/acM'ciiHe 

t«-«tify  that  they  wr-re  present,  and  and   cntitli-   tin'   will   to    proliat*-. 

saw  the  t4*Htator   sign  the   will   in  Ilcii-sof  ("rit/. ?'.  ricrci-,  l(i(i  III.  1(17. 

tln-ir  prcH'-nce,  or  that  till' trhtator  "  Tiic  ccrtilicjitc  of  pn.liate  of  u 

acknowledged  Kamc.  and  that  thi-y  will  iii'fl  not  set  mit  in   detail   tlui 

b'lievc  he  wab  of  wjund  mind    and  evidence  upon  u  lii<  li  llie  \\  ill   wa.-i 


440  ABSTliACTS   OF   TITLE. 

the  last  nu'Il  and  testament  of  said  Thomas  W.  Watson,  deed. 
Sitjned  hy  said  Judye^  and  the  seal  of  the  Kenosha  County 
Court  affixed. 

§  40.  Probate  of  Wills.  Probate  of  a  will  has  been  de- 
fined as,  the  ])r()of,  before  an  ollicer  authorized  by  laAV,  that 
an  inslrunient  olFered  to  be  proved  or  recorded  is  the  last 
will  and  testament  of  the  deceased  person  whose  testament- 
ary act  it  is  alleged  to  be.'  It  is  the  authentication  of  the 
instrument,  and  that  which  gives  to  it  its  legal  effect  and 
validity  as  a  conveyance,  and  nothing,  says  Lord  Kenyon," 
"  but  the  probate  or  letters  of  administration  with  the  Avill 
annexed,  are  legal  evidence  of  the  will,"  language  which 
has  been  repeated  and  approved  by  the  Supreme  Court  of 
the  United  States.'  A  will,  therefore,  which  has  not  been 
admitted  to  probate,  though  admissible  perhaps  in  connec- 
tion with  proof  of  adverse  possession,  is  not  evidence  of 
title  in  a  court  of  law,"  nor  would  it  afford  constructive 
notice  if  recorded. 

§  41.  Effect  of  Probate.  The  probate  of  a  will,  if  de- 
creed by  a  court  of  competent  jurisdiction,  establishes  the 
facts :  (1)  that  the  testator  at  the  time  of  executing  the  in- 
strument, was  of  sound  and  disposing  mind  and  memory, 
capable  of  understanding  the  act  he  was  doing,  and  the  re- 
lation in  which  he  stood  to  the  object  of  his  bounty,  and  to 
the  persons  to  whom  the  law  would  have  given  his  property 
if  he  had  died  intestate;  (2)  that  the  instrument  was  exe- 
cuted without  fear,  fraud  or  undue  influence  by  which  his 
own  intentions  were  controlled  and  supplanted  by  those  of 
another;  (3)  that  he  executed  the  instrument  animo  iestandi, 

proved.    If  conclusions  of  law  arc  *  Willamette,  etc., Co.  i\  Gordon, 

stated,  it  is  sufficient:    Mosley  v.  6  Oreg.  175;  Wood  v.  Matthews,  53 

Wingo,  7  Lea  (Tenn.),  145.  Ala.  1;  Pitts  v.  Melser,  72  Ind,  469; 

'  2  Bou.  Law  Diet.  378;  Pettit  v.  Shumway  v.  Hollu-ook,!  Pick.  114; 

Black,  15  Reporter,  90.  Ochoa  v.  Miller,  59  Tex.  4G0;  Pettit 

'  Rex  V.  Inhab.  of  Neatherseal,  4  v.  Black,  13  Neb.  142. 
T.  R.  (Eng.)  258. 

*  Armstrong  v.  Lear,  12  Wheat. 
175. 


WILLS.  447 

with  an  understanding  and  purpose  that  it  should  be  his 
last  will  and  testament;'  and  (4)  it  is  presumptive  evidence 
of  the  death  of  the  jjerson  whose  will  it  pur])orts  to  estab- 
lish/ Such  decree  is  •generally  rco;arded  as  in  the  nature  of 
a  judgment  in  rem,^  and  in  the  absence  of  statutory  provis- 
ions, is  conclusive  as  against  all  the  world,  as  to  the  validity 
of  the  will,'  and  alKrms  the  title  of  the  beneficiary  under  it 
from  the  time  of  the  testator's  death,  relating  back  so  as  to 
make  valid  whatever  has  been  previously  done,  which,  under 
the  will,  after  probate,  the  beneficiary  could  lawfully  have 
done.'  But  though  probate  establishes  the  sufficiency  of  the 
will,  and  confirms  the  claims  of  those  holding  under  it  so 
far  as  to  make  it  evidence  of  title,  it  does  not  determine  the 
title  to  the  propert}'-,  nor  establish  the  validity  of  any  devise 
given  by  it,  the  will  having  no  greater  effect  after  probate 
than  other  legal  conveyances." 

§  42.  Foreign  Probate.  In  order  to  entitle  a  devisee  of 
lands  under  a  Avill  probated  in  a  foreign  jurisdiction,  to  de- 
duce legal  title  to  same  in  the  courts  of  the  State  whore  the 
land  is  located,  it  is  necessary  that  the  Avill  be  also  pr()l)ated 
in  the  local  courts.  This  matter  is  governed  by  statute 
which  generally  provides  that  the  copy  of  the  will  ])resentcd 
must  be  accom})anied  by  the  foreign  probate  and  due  au- 
thentication thereof,  these  together  constituting  tlio  one 
instrument  or  subject-matter  to  be  acted  upon  under  the 
statute;  and  all  are,  as  a  rule,  essential  to  autliori/.c  tlie  pro- 
bate court  to  exercise  jurisdiction.''  "Wlionover  this  ancillary 
probate  is  resorted  to  it  is  generally  allowed  as  a  matter  of 

'Barker    v.    Comins,   110  Mass.  Williams,  1   Lea  (Tciin.),  ."3:29;  Orr 

477.  V.  O'Brien,  53  Tex.  149. 

'Carroll  r.  Carroll,  C  Tliomp.  &  'Stuphen  v.  Ellis,  WV,  Jlich.  410; 

C.  (N.  Y.)   294;  Belden   v.  Meeker,  Allaire  v.  Allaire,  37  N.  .1.  L.    312; 

47  N.  Y.  307.  Dulilin  r.Chadhouni,  16 Mass.  433. 

»IIalI  r.  H.ill,  47  Ala.  290;  Crij)-  "Fallon   v.    Chiilester,  40   Iowa, 

pen  V.  Dexter,  13  (Jray  (Mjihh.),  330;  588;    Greenwofxl    v.   Murray,     20 

suite  V.  Mc-(ilynn,  20  Cal.  233.  Minn.  259;  Ware  v.  Wisii.T,"4  :\Ic- 

« Brork  I'.  Fr.mk.  5  Ala.  85;  .Janes  Crarj'  (C.  Ct.),  CO. 
V.  WilliariiH,    31    Ark.   175;  Tueker  '  I'ope  v.  Cutler,    34   Mich.    150; 

V.  Whitehead,  58  Miss.  702.     In  re  Ward  v.  Oatt«,  43  Ala.  515. 


44S  ABSTRACTS    OF   TITLE. 

coui-se  and  without  iiKjuiring  into  the  validity  of  theAvill  or 
the  sutticioncy  of  proofs  upon  which  the  court  granting  tlie 
oriii:inal  probate  acted,  provided  such  original  ])robate  was 
o-ranted  l)yacourtof  competent  jurisdiction  and  is  properly 
authenticated.' 

§  43.  Abstract  of  Probate  Procoeilings.  It  is  estimated 
that  about  once  in  every  twenty-live  years  all  the  real  estate  in 
the  country  passes  under  the  supervision  of  the  probate  courts, 
and  whether  the  estimate  be  based  on  correct  or  incorrect 
data,  it  is  certain  that  there  are  but  few  titles  of  twenty-five 
years'  duration  that  do  not  show  testamentary  conveyances  or 
descents.  The  records  and  proceedings  of  these  courts, 
therefore,  have  a  direct  and  important  bearing  on  every 
title  of  long  standing,  and  are  among  the  muniments  that 
go  to  give  stability  and  security  to  the  possession  of  the 
])arty  asserting  such  title.  The  ordinary  proceedings  of 
county  and  probate  courts  which  have  a  direct  influence 
upon  land  titles  are:  the  probate  of  wills  and  issuance  of 
letters  testamentary  and  of  administration;  the  inventory 
and  collection  of  the  effects  of  deceased  persons;  the  proof 
of  pajnnent  of  debts  and  legacies;  the  assignment  of 
dower  and  homesteads;  the  sale  of  lands  by  executors 
and  administrators;  the  allowance,  distribution  and  par- 
tition of  the  estates  of  deceased  persons;  and  inci- 
dentally of  proceedings  relative  to  guardians  and  wards, 
adoption,  etc.  Sometimes  the  peculiar  exigencies  of  the 
case  may  include  all  of  the  different  matters  just  enumer- 
ated ;  again  the  desired  end  may  be  attained  Avith  a  shoAving 
of  but  one  or  tAvo.  So,  too,  it  will  sometimes  be  necessary 
that  a  very  full  exemplification  must  be  given  of  the  mat- 
ters presented  and  the  action  had  thereon,  while  under  other 
circumstances  only  a  brief  mention  will  be  required.  The 
matter  will  therefore  rest,  in  a  large  measure,  in  the  discre- 
tion of  the  examiner.  Upon  the  probate  of  wills,  the 
abstract  of  the  proceedings  should  show^ :  the  proof  of  the 

'  Brock  V.  Frank,  51  Ala.  89;  Ap-       Russell  v.  Hart,  87  N.  Y.  19;  Mark- 
person    V.    Bolton,    29   Ark.    418;      well  v.  Tlioruc,  28  Wis.  54SL 
Newman    v.   Willetts,    53    111.  98; 


•WILLS.  449 

will ; '  the  acceptance  or  renunciation  of  the  trust  by  the 
executor;  the  issuance  of  lettei*s  testamentary/  and  Cjualifi- 
cation  of  the  executor;  the  inventory  of  real  estate;  the 
])roof,  allowance  and  payment  of  claims.  This  much  is 
indispensable,  but  other  stei)s  and  proceedings  may  be  profit- 
ably shown.  The  degree  of  detail  to  be  observed  must  be 
governed  in  most  respects  by  the  judgment  of  the  examiner 
in  the  absence  of  instructions  from  the  client.  A  summary 
is  presented  by  way  of  illustration,  and  which,  perhaps,  is 
full  enough  for  ordinary  cases : 

County  Courts  Kane  county. 
In  the  matter  of  the  estate  1       In  Pwhate. 


of 
William  11.    Blacl\ 

deceased. 


Case  No.  3,  in  Box  153.* 
W^ll  of  William  IL  Black. 
Dated  May  2,  1S77. 
Filed  Octoher  13,  18S0. 
Proven  and  admitted  to  recoi'd,  January  2S,  18S1. 
Recorded  in  Vol.  2,  i:>o.ge  383. 
Said  testator  disposes  of  his  estate  asfolloios: 
Directs  the  payment  of  all  his  just  debts  and  funeral  ex- 
penses. 

Devises  to  his  executor  {or  his  s^icccssor)  his  "  home  place  ^'' 
consisting  of  house  and  ham,  and  ahovt  two  acres  of  land  on 
the  west  side  of  Park  Place,  and  r^mning  through  to  Tenth 
street,  and  lying  hetiveen  Forrest  avenue  and  Grinnell  street , 
in  the  city  of  Elgin,  Kane  county,  Ills.,  in  trust,  to  lea^e  same 
or  tit  sell  same  and  apply  income  and  proceeds  for  the  use  and 

'A  transcript  of  the  record  of  will    lie    prima  facie    evidence, 

probate  of  a  will  devising  lands,  and  will  of  itself  be  sidlicient  to 

made  before  a  proper  triliunal,  is  establisli  title,  if  not  overcome  by 

competent  evidence  of  title  in  an  counter  proof:    Allaire  v.  Allaire, 

action  of  ejectment,  if  the  record  87  N.  J.  L.  812. 
contains  the  jiroofs  taken  before  *  The  issuance  of  letters  presvitiip- 

the  court,  as  re<|uired  by  the  stat-  tively  establishes  the  fact  of  death: 

ute;  and,  if  the  pnj<jf3  contained  in  Carroll  t'.  Carroll,  G  Thoiiip.  A:  C. 

the  rr'cord  show  that  the  will  was  (N.  Y.)  294. 

cxiHuUfii   with  all   the   fornialitit*3  *Tliis  has  n-frrcncc  to  thedti>osi- 

re<iuired     by  btatute,    the  iirwbato  tory  uf  all  the  papera  in  the  cube. 
2'J 


450  ABSTRACTS    OF    TITI.F. 

comfort  of  his  wife,  Aima  Blacl',  during  her  vatmrd  life, 
and  for  the  support  and  education  of  his  son,  Walter  Black, 
and  at  the  death  of  his  said  wife,  if  undisposed  of,  to  he 
transferred  and  conveyed  to  his  son,  Walter  Black,  if  then 
living,  or  to  his  issue,  if  any,  if  he  he  not  living,  or  to 
testator''s  heirs  at  law,  if  his  said  son  shall  he  then  dead, 
leaving  no  issue. 

Gives  and  devises  to  his  nephew,  John  Black,  son  of  his 
hrother,  James  Bla^k,  etc. 

If  it  is  desired  to  set  out  the  entire  aa' ill,  Avhicli  Avill  rarely 
l)e  the  case,  the  devises  and  bequests  will  follow  liere  in 
narrative  form.  As,  however,  the  incjuiry  will  rarely  cover 
more  than  one  specific  tract,  the  particular  devise  which  has 
reference  to  such  tract  is  shown  in  detail,  and  general  refer- 
ence made  to  all  others ;  as, 

Devises  to  various  other  persons,  certain  real  estate  not  now 
in  question  {or,  not  covered  hy  this  examination). 

Unless  there  are  legacies  which  are  charged  upon  the 
land,  the  personal  bequests  ma}'  be  disregarded  except  the 
residuary  clause  which  next  follows : 

Gives,  devises  and  hequeaths  all  the  rest  and  residue  of  his 
'property,  real  and  personal,  including  lapsed  legacies  and 
devises,  unto  his  son,  Walter  Black,  suhject  to  the  payment  of 
the  following  annuities,  to  wit : 

To  his  mother,  etc.,  [set  out  the  annuities']. 

Appoints  his  hrother,  James  Black,  sole  executor  and  trus- 
tee, and  in  case  of  his  death,  declination,  resignation  or  ina- 
hility  to  act,  directs  that  Clarence  D.  Pemnj  act  in  his  place, 
waiving  security,  and  giving  his  executor  full  power  to  sell 
any  part  or  ptarts  of  the  real  estate  herein  devised  to  his  son 
Walter,  at pjuhlic  or  private  sale,  and  to  give  good  and  suffi- 
cient deeds  thereof  to  the  purchaser  or  purchasers  so  that  they 
shall  not  he  answerahle  for  the  application  of  t?ie purchase 
money,  and  in  case  of  such  sales  the  proceeds,  after  paying 
debts,  legacies  and  annuities,  to  go  to  his  son  Walter  as  part 
of  the  residue  of  his  said  estate. 

Three  witnesses. 


WILLS.  451 

Rennnciation  of  James  Blacl'  of  his  appoiiitment  as  exec- 
utor and  trustee,  Jikd  Jan  uainj  2S,  1881. 

Petition  of  Clarence  D.  Perry  for  proof  of  xoill  and  letters 
testatnentary,  filed  January  29,  1S81. 

Said  petition  represents  that  William  II.  Blaclc  died  tes- 
tate May  27,  ISSO,  leaving  him  suj^iving  Anna  Black,  his 
widow,  and  Walter  Black,  his  son,  his  only  heir  at  laxo. 

Sworn  to  Nov.  26,  1880. 

Letters  testamentary  to  Clarence  D.  Perry,  issued,  dated 
Jan'y  31,  1881.     Becm-ded  in  Vol.  2,pg.  273. 

Bond  in  sxim  of  $80,000.00,  security  waived,  filed  and  ap- 
vroved  Jan^y  31,  1881.     Recorded  in  Vol.  2,  pg.  273. 

Warrant  to  appraisers  issued,  dated  January  31,  1881. 

Appraisers'  report  filed  and  app>roved  June  8,  1881,  shows 
no  property  belonging  to  said  estate  suhject  to  appraise- 
ment. 

Appraisement  of  loidoid's  award  filed  and  approved  June 
8,  1881.     Total  value,  $2,800.00. 

Inventory  filed  and  approved  June  8,  1881.  Recorded  in 
Vol.  10,  pg.  627. 

Mentions  real  estate  as  follows: 

LoU  19  and  20,  Block  1,  etc. 

Proof  of  puhlication  and  posting  of  notices  for  adjudi- 
cation filed  July  12,  1881,  ap>proved  in  open  court  July  18, 

1881.  ^ 

Adjudication  ordered  Jxdy  18,  1881. 

Sundry  daiins  filed  and  allowed  amounting  to  the  sum  of 

$5,043.30. 

Continue  in  tliis  manner,  showing  all  important  steps, 
until  final  settlement  and  discharge  of  executor. 


CHATTER  XXIY. 

LIENS,  CHAKGES,  AND  INCUMBRANCES. 


i  1. 

Liens  generally. 

§  12. 

Municipal  liens. 

How  created. 

13. 

Official  bunds. 

3. 

Operation  and  effect. 

14. 

Leases. 

4. 

Method  of  aiTiingemeut. 

15. 

Vendor's  liens. 

5. 

Mortgages. 

16. 

Mechanic's  liens. 

6. 

Dower. 

17. 

Continued — Priority. 

Judgments  and  executions. 

18. 

Estate  to  which  the  lieu  at- 

8. 

Judicial  and  execution  sales. 

taches. 

9. 

Lis  pendens  and  attachment. 

19. 

Limitation  of  lien. 

10. 

Decedent's  debts. 

20. 

\  ssignabiUty. 

11. 

Taxes. 

21. 

Fjreclosure. 

§  1.  Liens  Generally.  A  lien  is  defined  as  a  hold  or 
<rharge  which  one  person  has  upon  the  property  of  another 
as  a  security  for  some  debt  or  charge,'  and  in  itsl)road  sense 
would  cover  all  burdens,  charges  or  incumbrances  placed  on 
land,  including  mortgages,  judgments,  taxes,  etc.,  as  well  as 
common  law  and  statutory  liens,  and  liens  arising  by  im])li- 
cation  of  law.  In  its  more  restricted  signification  it  is  used 
to  denote  certain  preferred  or  privileged  claims  given  by  stat- 
ute or  arising  by  implication  of  law,  and  indicates  a  mere 
right  to  hold  the  property  until  the  claim  has  been  satisfied. 
Even  in  this  latter  sense,  as  it  is  now  employed  in  convey- 
ancing and  the  compilation  of  abstracts,  its  popular  mean- 
ing confines  it  to  certain  classes  enumerated  by  statute;  as 
the  lien  of  mechanics  and  material  men,  attachment,  lis 
pendens,  etc.,  and  liens  arising  l)y  operation  of  law,  as  de- 
cedent's debts,  purchase  money  liens,  etc.  Liens  are  also 
classified  as  legal  and  equitable.    The  latter,  being  generally 

'  2  Bou.  Law  Diet.  47. 

(452) 


LIENS,  CHARGES    AND    IXCUMBRANCES.  453 

unknown  to  the  AvorlJ.  and  frequently  operating  injurionslv 
on  the  rights  of  creditors  and  purchasers,  are  never  enforced 
but  in  cases  where  the  right  is  clearly  and  distinctly  made 
out.' 

§2.  How  Created.  Liens  arc  created  upon  lands  by  the 
statute,  to  secure  the  pa^nnent  of  taxes,  and  other  public 
debts;  to  protect  estates  raised  out  of  or  incident  to  the  mar- 
riage relation;  to  effectuate  the  judgments  of  courts  by  allow- 
ing the  land  of  the  defendant  to  be  taken  in  execution,  as 
well  as  to  anticipate  such  judgments  by  way  of  attachment 
and  lis  pendens;  to  secure  the  j)ayment  of  debts  of  deceased 
persons,  and  to  secure  the  wages  of  laljorers  and  mechanics. 
They  are  also  created  by  the  direct  act  of  the  parties,  as  by 
leases,  mortgages,  etc.,  and  arise  in  a  number  of  cases  hv 
operation  or  implication  of  law,  as  to  secure  un])aid  ])urchase 
money,  etc.,  these  latter  being  known  as  equitable  liens.  In- 
tending purchasers  are  chargeable  with  notice  of  all  statutory 
liens,  the  provisions  of  the  statute  having  been  substantially 
complied  with,  but  Avilltake  the  land,  where  the  sale  is  made 
in  good  faith  and  for  value,  freed  from  the  burden  of  equi- 
table liens  of  which  they  had  no  notice. 

§  3.  Operation  and  Eli'eet.  Unlike  a  conveyance,  alien, 
however  created,  confers  no  estate  in,  or  title  to,  the  pro])erty 
to  which  it  attaches,  and  may  be  discharged  at  any  time  be- 
fore foreclosure  by  the  papuent  of  the  sum  for  which  the 
pro]»erty  is  held. 

§  4.  Method  of  Arrangement.  Liens,  charges  and  in- 
cumbrances of  every  kind,  with  but  one  exception,  are  shown, 
not  in  the  regular  course  of  title,  Ijut  in  aj)pendi('es  tosame, 
and,  for  better  convenience,  under  classilicd  heads.  The  ex- 
ception is  in  case  of  mortgages,  which,  following  the  cus- 
tom which  prevailed  when  such  instruments  were  convey- 
ances of  the  legal  estate,  are  shown  in  regular  chronological 
order  in  the  chain.  This  arrangement  ])ossosses  many  ad- 
vantages over  any  other,  the   chief  (;ne    bring,   however,  to 

'Conuvcri;.  Wjirnri,  1  Uilin.illl;  -iW;  boo  Walkur  v.  Maltlu-ua.  58 
III.  lUf). 


454:  ABSTRACTS   OF   TITLE. 

preserve  the  symmetry  of  the  title,  wliich  enables  counsel 
to  obtain  a  clearer  view  of  same  than  could  i)ossibly  be  ob- 
tained were  the  liens  and  charges  inserted  in  the  cliain  in 
their  order  of  time.  An  analysis  of  the  abstract  must  al- 
ways be  prejiarcd  in  everv  long  examination,  and  the  effect 
of  liens,  considered  with  reference  to  the  fee,  can  more  eas- 
ily be  determined  by  this  arrangement  on  the  compilation  of 
such  analysis  than  if  they  were  alloAved  to  interfere  with 
the  i>rimar3'  questions  raised  by  the  actual  conveyances. 
These  points  will  be  more  fully  demonstrated  in  treating  of 
«  Opinions  of  Title." 

§  0.  Mortgages.  The  ancient  doctrine,  by  which  mort- 
gages were  regarded  as  conveyances  of  the  legal  estate,  no 
longer  obtains  in  tlie  United  States,  or  at  least  but  in  a  very 
modified  form,  while  in  a  majority  of  the  States  they  are  re- 
garded simply  as  liens  on  land  to  secure  the  payment  of  in- 
debtedness.' Considered  simpl}'  as  liens,  they  might,  before 
default  or  foreclosure,  with  propriety,  be  shown  with  other 
liens,  and  it  is  the  custom  of  many  examiners  to  follow  this 
method  of  arrangement;  after  default  or  foreclosure  they  be- 
come essentially  muniments  of  title,  and  must  appear  in 
regular  chronological  sequence.  Mortgages  followed  by 
satisfaction  are  but  dead  matter,  and  when  forming  part  of 
the  chain  are  positive  hindrances  in  passing  the  title;  such 
mortfaf-es  might  be  shown  in  appendices  under  the  head  of 
"  satisfied  liens, "  the  main  object  being  simply  to  show  a 
proper  and  legal  release. 

§  6.  Dower.  The  inchoate  right  of  dower,  during  the 
lifetime  of  the  husband,  is  at  least  a  cloud  upon  the  title  in 
the  hands  of  the  husband's  alienee,  and  which,  in  the  event 
of  his  death  before  the  wife,  develops  into  a  positive  charge 
upon  the  land.'     In  the  first  event  it  is  hardly  a  lien,  while 

'  See  Chap.  XXI,   Odell  v.  Mont-  dcbrand,  46  Mo.  284;  Actor  v.  Hoyt, 

ross,  68N.  Y.  499;   Gorham  r.  Ar-  5  Wend.    602;  Parsons  v.    Noggle, 

nold,  22  Mich.  247;  Wliite  v.  Rit-  23  ]Minn.  328. 

tenmeyer,  30  Iowa,  268;  Vason  v.  ^  An  inchoate  riglit  of  dower  out- 
Ball,  56  Ga.  268;  Fletcher  v.  standmg  is  a  defect  in  the  title,  and 
Holmes,  32  Ind.  497;  Carpenter  v.  an  incumbrance  upon  the  estate: 
Bowen,  42  Miss.  28;   Woods  v.  Hil-  Wright  i'.  Young,  6  Wis.  127. 


LIENS,  CHARGES    AST)    IXCUMIiRANCES.  455 

in  the  latter  it  is  more  than  alien,  but  in  both  instances 
must  ordinarily  appear  inferential! y,  and  can  not  be  shown 
afflrmativeh"  in  the  abstract. 

§  T.  Jii(li!:ineiits  and  Executions.  Judgments,  from  the 
time  of  their  rendition,  and  executions,  from  the  period  of 
issuance  or  levy,  create  statutory  liens,  which  necessitate  a 
full  exposition  in  the  abstract.  The  subject  is  reserved  for 
ample  treatment  in  a  subsequent  cha]iter. 

§  S.  Judicial  aud  Execution  Sales.  The  purchaser  of 
lands  sold  on  execution  acquires  by  his  ])urchase  no  more 
than  a  lien  upon  the  lands  for  his  bid,  and  interest  during  the 
period,  if  any,  alloAved  for  redemption.  He  does  not  obtain 
the  legal  title;  and  if  tlie  premises  are  subject  to  a  mortgage, 
he  does  not  become  the  owner  of  the  equity  of  redemption 
until  after  the  expiration  of  the  period  of  redemption.' 

§  9.  Lis  Pendens  and  Attachment.  A  pending  suit 
conve3'"s  notice  to  intending  purchasers,  and  charges  the  land, 
in  whosesoever  hands  it  may  be,  with  the  consequences  of 
whatever  decree  may  be  made,  while  an  attachment  reserves 
the  land  to  satisfy  any  judgment  that  may  be  rendered  in 
the  suit  and  creates  a  lien  in  favor  of  such  judgment  in  ad- 
vance of  its  rendition.  The  attachment  is  a  lien  from  the 
time  of  the  levy.'' 

§  10.  Decedent's  Debts.  The  debts  of  a  deceased  per- 
son are  a  lien  upon  the  lands  of  such  decedent  in  tlie  hands 
of  his  heirs  or  de\isees,  and  the  lien  continues  until  ])aid  or 
barred  by  the  statute.  If  the  heir  aliens  tlie  lands,  the 
alienee  holds  them  subject  to  this  lion,  and  his  title  may  be 
defeated  by  a  subsofjuent  sale  by  the  admiuistrator." 

§  11.  Taxes.  Tiic  lien  of  the  State  for  taxes  attaches  to 
all  lands  subject  to  taxation  on  some  day  stated,  usually  the 
iirst  <lay  of  May  of  each  year,  and  every  jx'rson  owning  land, 
on  tiiat  <lay  is  lial)le  for  tlie  taxes  due  thereon  for  the  year.* 

'Vauf^lian  r.    Ely,  4  n.irb.  inO;  "Vansycklor.  Richardson.  13  III. 

Farm»TH  Bank  of  Saratr^^'a  v.  Mer-  171;  Hili  r.  Treat,  07  M*-.  noi;  ami 

chant.  1«  How.  (N.  Y.)  10.  k.-c  H.wcntlial  ?-.  liciii.U.  \\  III.  202. 

'Martin  v.  Drj'deu,  1  Uilin.  (III.)  <Aliny  r.  Hunt,    is  HI.  .15.     Tin- 

im.  dato  of  the  (•oimiu'iicrimiit  <>f  tin- 


-iOtj  ABSTRACTS    OF   TITLE. 

They  take  jH-iority  of  all  other  liens  under  the  principles  ap- 
plicable to  the  prerogati\'es  of  sovereignty.'  The  subject  will 
be  fully  discussed  further  on. 

g  12.  Municipal  Liens.  Liens  may  be  created  upon  the 
lands  of  individuals  and  corporations  by  ordinances  of 
cities  for  municipal  expenses;  lighting,  cleaning  or  repair- 
ing streets;  pul)lic  imi)rovemcnts,  etc.  All  questions  rela- 
tive to  the  elTect  of  municipal  ordinances  considered  as 
liens,  are  local  and  statutory. 

§  13.  Official  Bonds.  A  peculiar  class  of  liens  arises  in 
many  States  from  ollicial  bonds,  Avhich  are  declared  to  be 
liens  on  all  the  real  estate  held  jointly  or  severally  by  the 
oilicers  giving  same,  from  the  time  of  filing  same  until  such 
oliicers  shall  have  been  honorably  discharged  from  their 
trusts.  These  bonds  are  most  frequently  required  from 
collectors  of  taxes,  and  it  would  seem,  that  where  any  of  the 
l)arties  vendors  named  in  the  abstract,  during  the  period  in 
which  an  action  may  be  brought  on  an  official  bond,  have 
held  this  position,  or  have  been  a  surety  for  any  such  officer, 
an  examination  should  be  made  for  liens  of  this  nature.  As 
the  bonds  are  required  to  be  filed  or  recorded  in  some  of 
the  designated  public  offices  of  the  county,  the  files  or 
records  should  be  regularly  inspected  as  often  as  occasion 
may  require,  and  references  obtained  to  the  information 
thereby  disclosed.  The  indices  to  the  information  thus  ob- 
tained may  consist  of  special  volumes,  but  a  better  way  is  to 
post  same  in  the  "  irregular  "  index  where  the  names  of  the 
bounden  individuals  will  always  be  found  when  compiling 
the  chain.  Usually  where  a  bond  has  the  effect  of  a  lien,  the 
principal  and  his  sureties  are  entitled  to  have  a  discharge  en- 
tered whenever  the  operation  of  the  bond  has  ceased,  and 
where  the  obligation  is  discharged,  by  proper  entries,  it  may 
be  disregarded  in  making  up  the  abstract.  Where  the  bond  is 
apparently  a  subsisting  lien,  it  must  be  shown  in  the  same 
manner  as  other  liens.    In  abstracting  these  bonds,  the  general 

lien  has  reference  to  the  day   on  '  Dunlap  r.  Gallatin  Co.,  15  111.7; 

which  the  citizen  is    compelled  to      Dennis  v.  Ma3nard,  15  111.  477. 
list  his  land  for  taxation. 


LIENS,  CnAKGES    AND    IXCUMBKANCES.  457 

form  already  given  may  be  followed,  the  essential  particulars 
being  the  parties,  penalty  and  condition  of  the  obli^-ation, 
which  should  be  fully  stated.'  It  has  been  held  that  the 
statutory  lien  created  by  giving  an  official  bond  does  not  in 
any  way  affect  the  homestead  of  the  person  giving  same," 
but  with  this  exception,  it  attaches  to  all  the  real  estate  then 
owned  by  the  obligor  or  his  sureties,  and  also,  as  in  the  case 
of  a  judgment,  to  all  after  acquired  lands.' 

§  14.  LsiSLV-j.  A  lc:x30  is  rather  in  the  nature  of  a  charge 
or  incumbrance  on  the  fee  than  a  lien.  It  confers  a  right  of 
possession,  acconling  to  its  import,  to  the  exclusion  of  the 
owner  of  the  fee  or  reversion.  Considered  in  this  light  and 
it  can  be  viewed  in  no  other,  it  does  not  properly  come  within 
the  chain  of  title,  but  is  appended  to  it,  and  should  be  shown 
in  the  abstract  after  the  course  of  title  has  been  traced. 
When  exhibited  in  its  proper  order  of  time  as  a  part  of  the 
chain  it  may,  i)erhaps,  be  more  readily  considered  with 
respect  to  its  effect  on  subsequent  conveyances,  but  it  is  the 
experience  of  the  writer  that  correct  estimates  of  title  are 
more  easily  and  correctly  arrived  at  by  keeping  the  fee  dis- 
associated from  all  minor  estates.  The  better  ])lan  therefore, 
seems  to  be  to  show  leases  among  the  appendices,  and  should 
the  term  extend  over  a  long  period  of  time,  Avith  numerous 
assignments  or  transfers  of  any  interest  less  than  tlie  term, 
to  trace  the  leasehold  in  a  separate  chain,  with  jiropcr  sub- 
headings indicating  the  purjiort  of  the  search. 

§  15.  Vendor's  Liens.  Wiiere  tliere  is  an  express  reserva- 
tion made  in  a  deed  of  the  lien  of  the  vendor,  this  is  equiva- 
lent to  a  mortgage  taken  for  tlie  purchase  money  contomjio- 
raneously  with  tlie  deed.  Tlie  ])urchaser  has  the  e(]uity  of 
redemption  precisely  as  if  he  had  received  a  deed  and  given 
a  mortgage  for  the  purchase  money,  and  he  has  the  right  to 

'  Ah  to  tho  nature,  elTcct  and  con-  •  Ti-iistees  of  Scliool  v.  Huvey,  94 

Btruction    of    oflicial    bon<l8,   con-  111.  31)4. 

sidered    in    their  relation   to  rea^  '  Crawford  f.  liiclioson,  lUl  111. 

CHtate,   con.sult   Kiclieson  t'.  (.'raw-  801. 
ford.  94   III.   lOr);  and  Crawford  v. 
Ki.li.*-;n.  101  111.  -iTA. 


45S  ABSTRACTS    OF    TITLE. 

redeem.'  Hut  in  addition  to  this  there  is  a  recognized  lien  of 
the  vendor  for  unj)aid  })urcliase  money  whicli  is  not  based 
u})on  contract;  nor  is  it  an  equitable  mortgage  or  resulting 
trust,  but  an  equity  which  is  raised  and  administered  by  the 
courts,  who  enforce  or  deny  it  as  the  merits  of  each  particular 
case  may  seem  to  demand.  It  is  never  allowed  to  override  or 
take  priority  of  equities  or  rights  of  third  persons,  which 
have  attached  in  ignorance  of  such  vendor's  equity,  and  is 
not  in  tiiis  respect  like  a  mortgage,  or  any  other  lien  cre- 
ated by  express  contract,  or  even  by  statute.'  Under  the 
a]>]ilication  of  this  doctrine  a  purchaser  is  not,  in  equity,  the 
owner  adversely  to  the  lien  of  his  vendor,  but  is  treated  as 
a  trustee  for  him  until  the  purchase  money  is  paid.  The 
vendor's  lien  exists  against  such  purchaser,  and  against  xo]- 
unteers  and  ])urchasers  under  him,  with  notice  of  his  hav- 
ing an  equitable  title  only,"  or  with  notice  of  the  vendor's 
equitable  lien.*  A  vendor's  lien  is  personal  in  its  nature " 
and  is  raised  by  construction  of  equity  in  favor  of  the  ven- 
dor only.'  It  is  not  a  matter  of  sale  and  can  not  be  assigned, 
even  by  express  language,  with  the  note  taken  for  the  pur- 
chase money,'  and  an  assignment  of  the  notes  will  extin- 
guish the  lien,'  as  will  also  the  taking  of  a  distinct  and  inde- 
pendent securit3^°     As  a  vendor's  lien  is  secret,  unknown  to 

'  King  V.  Y.  M.  A.ssn.,  1   Woods,  Bowlin  v.  Pearson,  4  Baxter  (Tenn), 

386;  Smith   v.   Rowland.    13  Kan.  341. 

245;  Carpenter  v.   Mitchell,  54  III.  "^  Lindsey  u.  Bates,  42  Miss.    397; 

120.  Small  v.  Stagg,  95  111.  39. 

'Allen  t".  Loring,  34  Iowa,   499;  '' Ih'ct    v.    Spears,   27   Ark.   229; 

Swan    V.    Benson,    31    Ark.    728;  Markoe  v.  Andra-s,   G7  111.    34.  But 

Jloody  V.  Fislar,  55  Ind.  592;  Mosh-  see  contra,  Bill  v.  Mason,  42  Iowa, 

ierr.  Meek,  80  111.  79.  330. 

'Walton  V.  Hargroves,  42  Miss.  ^ Pillow     v.     Helm,     7     Baxter 

18;  Burch  v.  Carter,   44  Ala.  115;  (Tenn.),  545;  Hightower  u.  Rigsby, 

Swan    V.    Benson,    31    Ark.    728;  56  Ala.  126;  Bonnell  v.  Holt,  89  111. 

Harshbarger  v.    Foreman,   81   111.  71. 

364;   Madden  v.    Barnes,   45   WLs.  'Anderson  v.   Donnell,   66   Ind. 

135.  150;   Stuart  v.  Harrison,   52  Iowa, 

••Graves  v.  Coutant,  31  N.  J.  Eq.  511;  Neal   v.  Speigle,    33   Ark.    63*; 

763;  Wilson  v.  Lyon,  51  111.  166.  Stevens  v.  Rainwater,  4  Mo.   App. 

'Jones    V.    Doss,    27    Ark.    518;  292;  Cowl  u.  Vai-num,  37  111.  181. 


LIENS,  CHARGES    AND    INCUMBRANCES.  459 

the  •world,  and  often  productive  of  harm,  it  will  not  be 
extended  beyond  the  requirements  of  the  settled  principles 
of  equity,  and  such  liens  are  not  encouraged  by  the  courts.' 

§  10.  Mechanic's  Liens.  A  mechanic's  lien  is  the 
creature  of  statute,  and  depends  solely  for  its  validity  upon 
the  act  creating  it.  The  act  is  an  innovation  upon  the  com- 
mon laAY  affecting  property  and  rights  of  property,  author- 
izing, as  it  does,  propert}'-  to  be  incumbered  without  or 
against  the  consent  of  the  owner,  and  without  a  resort  to  legal 
process  or  judicial  action.  Such  an  act  can  not  be  extended, 
in  its  operation  and  effect,  beyond  the  fair  and  reason- 
able import  of  the  words  used,  and  whoever  asserts  the  lien 
must  bring  themselves  within  its  terms,  and  the  lien  must 
be  shown,  not  only  to  have  been  regular  and  valid  in  its 
inception,  but  to  be  a  continuing  and  existing  lien  under  the 
statute.'  The  design  of  the  law  is  to  protect  the  mechanic, 
laborer,  and  material  man  to  the  extent  of  services  per- 
formed or  materials  furnished.  The  lien  is  absohite  to  the 
extent  of  the  owner's  interest  in  tlie  premises,  and  can  not 
be  divested  by  a  sale  or  transfer  of  same,  after  the  com- 
mencement of  performance  of  the  contract.' 

§  17.  Continued — Priority  Being  dependent  on  tlie 
statute  for  its  force  and  extent,  no  general  rule  can  be 
asserted  in  regard  to  the  priority  of  mechanic's  liens.  They 
usually  take  precedence  of  mortgages  given  after  the  com- 
mencement of  the  work,  but  as  between  meclianics  there 
can  be  no  priority,*  Where,  liowever,  a  mortgage  or  other 
lien  takes  effect  after  the  commencement  of  one  or  more 
mechanic's  liens,  but  before  the  commencement  of  otlicre, 
the  latter  must  be  postj)oned  to  the  mortgage  lion.'  As 
between  a  lien  upon  an  equitable  interest  and  one  upon  a 

'Cowl   V.   Varniim,    37   111.    181,  Mass.    470:  Tliiclm:in    i-.    tarr,   75 

Dofjlittle  V.  Jenkins.  55  111.  400,  111.  3M5. 

«  Mushlitt  V.  SilvL-mian,  50  N.  Y.  ••  In  re  Iloyt.  3  HUs.  4:50;  Tliitl- 

8W;  iJinkins  r.    Ii<jwcrH,  40   MisH.  m.-in  v.   Carr,  75  111,  8.S5;  PowcKt 

219;  lititht't-rlMT   v.    Diipy,    04    111.  (Jo.  v.  I>)oini.s,  2  DiKncy  (Ohio).  514. 

452.  *  PowdtT  Co.  V.  Luuniis,  '<i  Dis- 

»  Mi'han  v.  Williams,  2  Daly  (S.  nay  (Ohio),  514. 
Y.),  867;    Dunkleo    v.   Cruiie,   loa 


4G0  ABSTRACTS    OF    TITLE. 

full  legal  title,  the  latter,  though  sul)scquent  in  time,  may  be 
]ireferre(.l  to  the  former,  if  the  holder  thereof  be  an  inno- 
cent and  hoTia  fide  holder  -without  notice.'  Mechanics  and 
laborers  asserting  a  lien  u})on  real  property  for  their  work, 
and  claiming  priority  over  moi'tgagees  and  others  who  have 
acquired  interests  in  the  property,  must  furnish  strict  proof 
of  all  that  is  essential  to  the  lien,"  but  of  what  these  essen- 
tials consist,  local  law  must  decide.  In  abstracting  the 
petition,  notice  or  other  preliminary  measure,  the  examiner 
will  consult  the  statute  and  observe  that  all  its  material 
requirements  are  com]>l:ed  with. 

§  IS.  Estate  to  Which  the  Lien  Attaches.  To  render 
the  lien  effective,  and  afford  protection  to  the  artificer  in 
every  possible  case,  it  is  permitted  by  statute  to  extend  to 
either  an  estate  in  fee,  for  life,  for  years,  or  any  other  es- 
tate, or  any  right  of  redem])tion  or  other  interest  which 
such  owner  may  have  in  the  land  at  the  time  of  making  the 
contract,  and  whatever  right  or  estate  such  owner  had  at 
that  time  may  be  sold  in  satisfaction  of  the  lien."  But  the 
lien  affects  only  the  title  of  the  person  contracting,  and 
where  such  person  possesses  only  an  equity,  the  legal  title  is 
not  impaired.*  It  can  not  extend  to  affect  or  im]iair  the 
right  of  dower;'  nor  the  estate  or  title  of  an  infant;'  nor 
the  title  to  the  fee  or  reversion,  when  the  contracting  party 
is  only  a  tenant  for  life  or  years;'  nor  the  property  of  a 
third  party  in  the  temporary  use  of  another;"  nor  the  sepa- 
rate property  of  a  married  woman,  where  the  contract  is 

'  Jones  V.  Lapham.  15  Kans.  540.  «  Grove  v.  Gather,  23  111.  634. 

«  Davis  V.  Alvortl,  94  U.  S.  545.  '  McCarthy  v.  Carter,  49  111.  53. 

^Kid.ler  v.  Aholtz,   3G  III.    47»;  "^  «Knar.p  r.  Brown,   45  N.  Y.  207, 

Donaldson  v.  Holmes,  23  111.  85.  McCarty  v.  Carter,  49  111.  53;  Fran- 

*  Hickox  V.  Greenwood,  94   111.  cis  v.  Sayles,  101  Mass.  435;  and 

266.  this    even     though    the   leasee    is 

McCarty  v.  Carter,  49  IK.   53;  bound  to  make  improvements  and 

Hickox  v.  Greenwood,  94  111.  266;  leave  them  on  the  premises  at  tlie 

Craig  r.  Swinerton,  15  N.  Y.  Sup.  expiration  of  the  term:    Knapp  v. 

Ct.  144-  Hayes  v.  Fessenden,  106  Brown,  45  N.  Y.  207. 

Mass.  228;  Hallahanv.  Herbert,  11  "Tracy  v.    Rogers,    69   111.    662; 

Abb.  (N.  Y.)  Pr.  (N.  S.)  326;  Knapp  Tliaxter  v.  Williams,   14  I'ick.  49. 
V.  Brown,  45  N.  Y,  207. 


LIENS,  CHARGES    AND   INCITMBKANCES.  461 

made  without  her  knowledge;'  nor  will  it  extend  against 
the  projjerty  of  the  State.'  The  lien  extends  to  the  prop- 
erty of  a  decedent,  and  may  be  enforced  against  the  land  in 
possession  of  the  heirs,  but,  it  seems,  can  not  be  made  a  per- 
sonal liability  against  them.' 

§  19.  Limitation  of  Lien.  It  is  difficult  to  formulate  a 
statutory  rule  that  shall  be  of  general  application,  and  par- 
ticularly in  so  technical  a  matter  as  mcclianic's  liens.  Ko 
lien  is  given  in  any  of  the  States  unless  steps  are  taken  to 
secure  and  perfect  it  within  a  specified  period,  usually  six 
months  or  one  year  from  the  time  of  the  last  charge  for  per- 
formance of  work  or  furnishing  of  materials,  and  in  some 
States  there  is  a  special  limitation  witli  respect  to  the  com- 
mencement of  the  work;  as,  when  the  contract  is  expressed, 
no  lien  is  created  if  the  time  stipulated  for  the  comj)letion 
of  the  work  is  beyond  three  years  from  the  commencement 
thereof,  or  the  time  of  payment  beyond  one  year  from  the 
time  sti])ulated  for  such  completion.  "Wliere  tlie  contract  is 
implied,  no  lien  is  given  unless  the  work  shall  have  been 
done  or  the  materials  furnished  within  one  year  from  the 
commencement  of  the  work  or  delivery  of  materials.  The 
petition  for  the  enforcement  of  this  lien  must  state  every- 
thing necessary  to  show  a  due  com]>liance  with  the  stat- 
ute,* and  such  parts  as  specificallv  relate  to  the  demand; 
the  contract  upon  wliich  it  is  founded;  the  dates  of 
performance;  the  amount  due;  and  the  specific  jirojierty 
which  is  sought  to  be  incumbered,  togetlier  with  other  ma- 
terial facts  in  rehition  thereto,  must  be  shown  carefully  and 

'  Flannery    v.    Rolirmaycr,     40  :3  Nth.  :?!»7:  Paiiolii  Co.  Sup.  r.  Gil- 
Conn.  558.     Otherwise  where  such  len,  50  Mi.ss.  108. 
marrifd    woman     liad     i)ers()nal  '  M<riri'W  v.   MeCarty,  78  Iiitl. 
knowlfdf^e  of  the  work,  or  Rave  4C(]. 

diref-tions  conecrninn   it:     Collin.s  '•Muslilitt  ?*.  Silverman.  50  N.  Y. 

V.  Me^raw,  47  Mo.  41)5;  or  the  ma-  <%();  ninkiiiH  r.   Hitwci-s,   4!)   Mi.ss. 

tftrial.H  were  fiirnislied  at  lier  re-  219;  It<>thKerl)er  v.  Dupy.  01  III.  45'J; 

qu«-Ht,  or  had  her  approval:  (irecn-  D.ivis  v.  Alvurd,  Ul  V.  S.  515;  V:il- 

leaf  r.  Ii<-lM'e,  80  111.  njn.  ciitin.-  r.   Hawsoii,    57    Iowa,    17»; 

'  TIiomaH   V.   InduHtrial   Uiiivcr-  Conroy  v.  Terry,  UO  KaiiKiiH,  472; 

Bity,  71  111.  .'MO;  Kipley  v.GngeCo.,  Rugg  r.  Hoover,  28  Miim.  Id  I. 


4<V2  ABSTRACTS    OF    TITLE. 

in  detail,  that  counsel  may  see  from  inspection  wliether  all 
the  conditions  necessary  to  create  the  lien  are  stated  and  all 
statutory  requisites  complied  with.  Unless  the  petition 
shows  on  its  face  a  contract  within  the  statute,  no  lien  Avill 
result.' 

§  20.  Assififnal)ility.  The  lien  given  by  the  statutes  is, 
in  general,  a  personal  right  given  to  the  mechanic,  material 
man  and  laborer  for  his  own  protection,  and  the  right  can 
not  be  assigned  or  transferred  to  another,"  unless  the  assign- 
ment is  made  for  the  benefit  of  the  assignor,  and  to  be  held 
as  his  agent,  so  that  the  lien  may  be  preserved.'  In  some 
States  the  lien,  while  not  assignable,  will  pass  as  an  incident 
to  the  debt." 

§  21.  Foreclosure  of  Lien.  The  lien  given  by  statute  is 
not  susceptible  of  summary  enforcement,  but  must  be  prose- 
cuted by  action  of  an  equitable  nature,  and  where  the  lien 
is  finally  satisfied  by  sale  under  a  decree,  all  the  intermedi- 
ate steps  should  be  succinctly  stated  to  show  a  complete  di- 
vesture  of  title  under  the  statute.  The  right  of  redemption 
does  not  follow  a  sale  under  a  decree  to  satisfy  a  mechanic's 
lien,  in  many  of  the  States,  and  as  the  proceedings,  in  this 
respect,  are  of  a  summary  nature,  it  is  essential  that  in  all 
such  instances  more  than  ordinary  care  be  taken  in  the  syn- 
opsis. 

'  McClurken  r.  Logan,  23111.  79;  'Calrlwell  v.  Laminer.  10  Wis. 

Rowley  v.  James,  31  111.  298;  Val-  332;   Pearsons  v.  Tincker,  36  Me. 

entine  v.  Rawson,    57   Iowa,  179;  384. 

and  see  Hammond  v.   Wells,   45  ^  McCombie  v.  Davis,  7  East,  5; 

Mich.  11;  Treusch  v.  Sliryock,  55  Rollin  v.  Cross,  45  N.  Y.  766. 

Md.  330.  •*  Brown  v.  Smith,  55  Iowa,  31. 


CHAPTER  XXY. 


LIS  PENDENS  AND  ATTACHMENT. 


§  1.    Doctrinp  ot  lis  pendens,  ^5.    Attachment. 

2.  Continued — Effect     of     dis-         6.     Formal  requisites  of  attach- 

missal.  ments. 

3.  Notice  Zi's  pendens. 

4.  Propert%-  drawn  incidentally 

in  question. 

§  1.  Doctrine  of  Lis  Pendens.  It  is  a  rule  in  equity, 
long  established  and  acted  on,  that  a  purchase  of  prop- 
erty actually  in  litigation  ^^ew^en^  lite,  although  for  a  valu- 
able consideration  and  without  any  express  or  inii)lied  no- 
tice, affects  the  purchaser  in  the  same  manner  as  if  he  had 
such  notice,  and  he  -will  accordingly  be  bound  by  the  judg- 
ment or  decree  in  the  suit.  "  This  rule  is  said  to  rest,"  ob- 
serves Earl,  C,  "  upon  the  presumption  that  every  man  is 
attentive  to  what  passes  in  the  courts  of  justice  of  the  State 
or  sovereignty  where  he  resides,  and  to  be  founded  on 
public  policy;  for  otherwise  alienations  and  transfers  of  title 
made  during  the  pendency  of  a  suit  might  defeat  its 
whole  pur])ose,  and  there  would  be  no  end  to  litigation."  ' 
"A  suit  in  chancery,"  says  De])ere,  J.,'  "duly  ])rosccuted  in 
good  faith,  and  followed  by  a  decree,  is  constructive  notice 
to  every  person  who  acquires  from  a  defendant  7'<7?^//7i/d 
lite,  an  interest  in  the  subject-matter  of  tlie  litigation,  of  tlie 
legal  and  equitable  rights  of  the  j)l:iiiitiir  as  chai'g*'<l  i"  tlie 

'  Ij-iUh   V.    Wi-llH,   48  N.  Y.  r,85;      v.  l^lcl^iren.  4  Cow.  007:  Miller  v. 
SU.ry'H  l-x].    Jiir.    ^  40r);  JackHon  r.      Shfrry,  2  Wall.  (U.  S.)   iiUT;  Jack- 
Andr.'WH,  7  W.-nd.  IM;  Hayd.n  r.      Bon  r.  Warnii.  82  HI.  H:il. 
liurklin.   9   I'u'n^c,   .072;     (Jn-cii    v.  Hinvnv.    SlayLt-r,   4  Juims.  Cfi. 

Slater,  4  Johuh.    Ch.    38;  HoiikiriH      :J8. 

(40:J) 


404  ABSTKACTS    OF    TITLE. 

hill  and  estnl)lislu>(l  l)y  tlio  decree.  This  efTect  of  a  snccossfid 
litigation  in  suhordinatingthe  title  of  a  purchaser  i)endiiig  a 
liti'i-ation,  to  the  rights  of  the  itlaintilf  as  established  in  the 
suit,  is  not  derived  from  legislation.  It  is  a  doctrine  of  courts 
of  equity  of  ancient  origin  and  rests  not  upon  the  principles 
of  the  court  with  regard  to  notice,  but  on  the  ground  that 
it  is  necessary  to  the  adniinisti'ation  of  justice  that  the  de- 
cision of  the  court  in  a  suit  should  bo  Ijinding  not  only  on  the 
litigant  parties,  but  also  upon  those  who  acquire  title  from 
them  during  the  pendency  of  the  suit.  Such  a  ])urchaser 
need  not  be  made  a  party,  and  will  be  bound  by  the  decree 
which  shall  be  made."  '  The  doctrine  of  lu. pendens  applies 
only  where  a  third  person  attempts  to  intrude  into  a  con- 
troversy by  acquiring  an  interest  in  the  subject-matter  of 
the  litigation,  and  the  reason  of  the  rule  is,  says  Chancellor 
Kent,  "  that  if  a  transfer  of  interest  pending  a  suit  were  to 
be  allowed  to  affect  the  proceedings,  there  would  be  no  end 
to  litigation;  for  as  soon  as  a  new  party  was  brought  in,  he 
might  transfer  to  another,  and  render  it  necessary  to  bring 
that  other  before  the  court,  so  that  a  suit  might  be  inter- 
minable." '  It  will  be  understood,  however,  that  the  rule, 
that  a  party  purchasing  j:>m<:Z<?n^e  lite  is  to  be  regarded  as  a 
purchaser  with  notice,  subject  to  all  the  equities  of  the  per- 
son under  whom  he  claims,  and  bound  by  the  decree  that 
may  be  made  against  the  person  from  whom  he  derives  title, 
a]i])lies  only  to  cases  in  which  such  purchaser  derives  title 
from  one  of  the  parties  litigant.  If  he  claims  adversely  to 
both  parties  by  title  paramount,  the  proceedings  to  which 
he  is  neither  party  nor  privy  can  not  bind  him.' 

§  2.  Continued — Ell'ectof  Dismissal.  Where  a  suit  at 
law  is  dismissed,  or  the  plaintiff  suffers  a  non-suit,  or,  if  in 
chancery,  the  bill  is  dismissed  for  want  of  prosecution,  or  for 

•  Haughwout  V.  Murphy,  7  C.  E.  "  Murry  v.  Lybum,  2  Johns.  Ch. 

Green  (N.  J.),  531;  2  Story's    Eq.  444. 

Jur.,   §  908;   Murry  v.    Lybum,  2  ^^llen  v.  Morris,  34  N.  J.  L.  159; 

Johns.'ch.  444;  Dickson  v.   Todd,  Scarlett  v.  Gorbam,  28  111.  319. 
43  111.  405;  Alwood  v.  Mansfield,  5b 
111.  496. 


LIS    PENDENS    AND    ATTACHMENT.  465 

any  other  cause  not  on  the  merits,  although  in  all  such  cases 
a  new  action  could  be  brought,  it  would  not,  it  seems,  ail'ect 
the  purchaser  during  the  pendency  of  the  first  suit;  and 
where  a  suit  is  dismissed  and  afterward  reinstated,  the  doc- 
trine of  Us  j^cndcns  is  not  applicable  to  one  who  purchases 
after  the  dismissal  and  before  the  revival  of  the  suit.' 

§  3.  Notice  Lis  Pciidons.  This  common  law  fule  of  re- 
quiring purchasers,  at  their  peril,  to  take  notice  of  the  pend- 
ency of  suits  in  courts  of  justice  for  the  recovery  of  the 
property  they  are  about  to  purchase,  although  it  is  really 
impossible  that  they  should  actually  know  that  such  suits 
have  been  commenced,  has  always  been  considered  a  hard 
rule,  and  is  by  no  means  a  favorite  with  the  courts.'  It  has 
always  been  considered  a  very  harsli  rule  in  its  ajiplication 
to  bona  fide  purchasers  for  value,  and  has  only  been  toler- 
ated by  learned  judges  from  a  supposed  necessity.  In  tlie 
absence  of  statutory  provisions  to  the  contrary,  the  bill  is 
itself  a  suilicient  notice  to  the  world,  so  as  to  defeat  the 
transfer  of  property  by  the  defendant,  made  subsequent  to 
its  filing; '  but  in  a  large  number  of  the  States,  particujarlv 
where  the  N.  Y.  code  lias  been  followed,  a  material  chano-e 
has  Ijeen  made  in  this  rigorous  rule,  which  provides  that  the 
pendency  of  a  suit  shall  not  be  notice  to  a  stranger  until  a 
notice  of  Us  pendens  has  been  filled  in  the  office  of  the  re- 
corder of  deeds,  or  clerk's  office,  of  the  county  whore  the 
land  is  situated,  and  that  as  to  one  having  no  actual  notice, 
he  may,  in  good  faith,  and  for  a  valuable  consideration, 
ac<|uire  a  good  title  until  such  notice  is  filed.*  Tlie  lis  j)en- 
dcns  in  this  case  would  take  elTect  as  ncjtice  in  the  same 
manner  as  attachments.  Where  the  suit  is  pending,  and 
before  the  bill  or  c<jm])laint  has  been  filed,  the  notice  will 
best  be  shown  by  way  of  appendix  tlie  same  ;ls  attachments, 

'  IIiTringUjni'.  McC'ulluiii,  7:!  111.       111.  T):}*;;  D.ivis  ?-.  Lift'   Ins.  Co.,    HI 

4W.  Hi.  r.os. 

»IIuy<l.-n   V.    nuckliii,   9    raiKi*,  *Scc    N.    Y.    ("odi",    ^\\\'l.     Tlii.s 

572.  BcctidM  li!iH  Ikhti  very  j^fiwnilly  rr- 

•  Parkiri.>win  v.  TroUHclalc,  SScain.  cnact^-il  in  uU  SUiUs  having  a  iikIl' 

(111.)  ;Wi7;  V;in/.;iiit    r.   Viinzaiit,  23  i.i;i<ti<i-. 
:{<J 


400  AUSTRACTS    OF    TITLE. 

l)iit,  where  the  abstract  gives  a  synopsis  of  the  proceedings 
tlien  had,  its  orderly  arrangement  would  be  to  precede  the 
synopsis.  After  decree  it  appears  only  as  an  unimportant 
incident  and  is  merely  alluded  to  in  making  the  chain.  The 
form  and  substance  of  the  notice,  as  well  as  the  validity  and 
etfect  of  same,  are  matters  of  local  ])ractice  and  construction, 
but  the  following  will  serve  as  an  example  in  al)stracting: 

Circuit  Court  for  Kenosha  County. 
John  Doe  )      Notice  Lis  P-mdens. 

a</st.  \      Dated  March  1,  1SS3. 

liichard  Roe.  )      Recorded  March  2,  1883. 

Vol  25,  page  600. 
Recites,  that  an  action  entitled,  as  above,  ha^s  been  com- 
menced in  the  above  named  court,  and  is  noto pending  therein, 
on  complaint  of  above  named  plaintiff  against  above  named 
defendant,  for  [here  set  out  the  object  of  the  action  as  stated; 
as,  "  the  foreclosure  of  a  mortgage,  dated  June  10,  1880,  exe^ 
cuted  by  said  liichard  Roe  to  said  John  Doe,  aiul  record£d 
in  voUime  10,  page  85,  and  covering  the  following  described 
premises,  to  wit:  "  here  set  out  the  description  as  stated.'] 

§  4.  Property  Drawn  Incidentally  in  Question.  Where 
the  rule  of  lis  pendens  in  its  original  shape  is  still  retained,  the 
authorities  are  generally  unanimous  in  declaring  it  to  apjily 
only,  first,  where  the  litigation  shall  be  about  some  specific 
thins  which  must  be  necessarily  affected  bv  the  termination  of 
the  suit;  and  secondly,  that  the  specific  property  must  be  so 
pointed  out  by  the  proceedings  as  to  warn  the  whole  world 
that  they  meddle  with  it  at  their  peril.'  Under  the  applica- 
tion of  these  principles,  it  has  been  held  by  an  almost  in- 
variable uniformity  in  the  decisions  on  the  subject,  that  the 
rule  does  not  apply  to  proceedings  in  suits  which  are  in  per- 
sonam? The  question  arises  frequently  in  suits  for  divorce 
and  in  which  the  wife  seeks  to  have   a  certain   subsistence 

'  Freeman  on  Jiulg't,  196;  Green  r.  Almond,  4  Rand.  662;  Bright- 
f.  Slayter,  4  Johns.  Ch.  38.  man  v.  Brightman,  1  R.  I.  112. 

«  1  Storj-  Eq.  Jur.,  §196;  Almond 


LIS    PENDENS    AND    ATTACHMENT.  467 

secured  to  her  out  of  the  estate  of  her  hushantl,  and  while 
the  general  prayer  is  not  sufficient  to  subject  the  property  of 
the  husband  to  the  application  of  the  rule,  it  seems  that 
where  specific  property  is  incidentally  draAvn  in  question, 
either  by  recitals  of  the  bill  or  oulers  of  the  court,  such  a 
Us  pendens  is  created  as  will  bind  a  purchaser  j!)<?7?^<?»^<3  lite.^ 
§  5.  Attachment.  The  office  of  an  attachment  is  simply 
to  secure  to  the  creditor  the  property  which  the  debtor  has 
at  the  time  it  is  made,  so  that  it  may  be  seized  and  le\ied 
upon  in  satisfaction  of  the  debt,  after  judgment  and  execution 
shall  have  been  obtained.'  It  creates  no  estate  in  favor  of  the 
person  at  whose  instance  the  attachment  issued,'  and  does 
not  change  or  alter  the  estate  of  the  defendant  debtor.*  It 
places  no  impediment  on  the  power  of  alienation,'  nor  will 
it  atfect  prior  honajide  liens  that  may  have  been  placed  u])on 
it.'  It  does  create,  however,  a  lien  which  nothing  but  the 
dissolution  of  the  attachment  can  destroy,'  and  every  person 
into  whose  hands  the  property  may  come,  takes  it  charged 
with  this  lien,  and  subject  to  all  the  rights  of  the  attaching 
creditor  to  have  the  property  seized  and  sold  on  execution 
fur  the  satisfaction  of  his  debt.*  An  attachment  can  oj)erate 
only  upon  the  right  of  the  debtor  existing  at  the  time  it  was 
made,  and  no  interest  subsequently  acquired  by  tlie  debtor 
can  in  any  manner  be  affected  by  the  return  thereof,  wlien 
none  was  in  him  at  the  time.'  Being  in  derogation  of  the 
common  law,  an  attachment  is  dependent  entirely  upon  tlie 
statute  for  its  validity  and  effect,  and  must  conform  to  its 
requirements  in  all  essential  particulars.'" 

'Islerr.  Brown,  CO  N.    C.   nr.O;  'Hushandsr.  Jonos.OBush  (Ky.), 

Daniel    v.    Hodges,    15   R<i)oitrr,  21H. 

5:i-t.  '  Smith   V.    Bra.lstrcct,    1(5  Pick. 

»Crocker  u.  Pierce,  31  Me.  177.  2(>l;  llaiinalis  v.  F.-lt,  IT,  Iowa,  IJl. 

•Goddard   v.    Perkins,    9   N.   II.  '  Kandolpli  ?'.  Carlton,  H  Ala.  (JOO. 

488;  Foulks  v.  Pcgg,  6  Nev.  136.  »C'rf><ker  t'.  Pierce,  31  Me.  177. 

♦Bigelowu.  Wilson,  1   Pick.  485;  '"May  r.  Baker,  15  Bl.  bO;  llay- 

Blaker.  Shaw,  7  Maiis.  505;  Merrick  wood  v.  Collins,  00  Bl.  32a. 
r.  Hutt,  15  Ark.  331. 

'  Warner  v.  Everett,  7  B.    Mun. 
(Ky.;  202. 


408  ABSTRACTS    OF    TITLE. 

§  0,  Formal  Rociuisitcs  of  Attaclimoiit.  Tli<)ii;^li  tlio 
remedy  1)V  altaeliment  is  purely  staliitoiy,  and  while  there 
exists  ill  many  particulars  a  -wide  dissimilarity  l^etween  the 
attaelimeiit  acts  of  the  sevei'al  States,  there  is  yet  a  marked 
imiformity  in  the  general  steps  that  must  be  pursued  to  render 
it  available,  and  its  effect  in  all  the  States  is  nearly  identical. 
The  suit  is  instituted  by  tlie  filing  of  a  statutory  aflidavit, 
and  is  followed  by  the  writ  and  levy,  wliich  is  ordinarily 
accomplished  by  filing  a  certificate  of  same  with  the  recorder 
of  deeds,  the  property  being  bound  from  the  time  of  such 
filing.'  In  preparing  the  abstract  the  certificate  of  levy 
would  probably  be  all  that  is  required  to  furnish  a  notice 
lis pendejis,  hut  in  Y>Ynctice  it  is  customary  also  to  show  a 
brief  synopsis  of  the  court  proceedings,  and  this  is  the  bet- 
ter practice,  as  counsel  not  infrequently  desires  same  as  a 
reference  or  index,  as  well  as  to  see  that  the  formal  steps 
have  been  properly  taken.  Neither  in  this,  nor  in  other 
cases  where  court  proceedings  are  shown,  is  it  customarv  to 
give  more  than  brief  references,  or  statements  of  steps  taken, 
and  where  greater  detail  is  desired  it  is  obtained  by  a  tran- 
script of  the  record  and  papers,  or  by  personal  inspection  of 
the  files.  An  abstract  entry  of  an  attachment  showing  the 
court  proceedings  and  sheriff's  certificate  of  levy  is  appended 
and  will  illustrate  the  method  just  described: 

Liens  and  Lis  Pendens. 


Ln  Superior  Court  of  Cook  County,  Ills. 
William  R.  Smith  )       Case  No.  89,928. 
vs.  >      Attachment. 

John  Savage.        )      Ajjidavit  and  hond  filed,   and  vjrit 

issued  May  23,  1881. 
Returned  levied  May  23,  1881,  upon  all  the  right,  title  and 
interest  of  above-named  defendant  in  and  to  the  following 
described  real  estate^  to  wit:     \JLere  set  out  the  projjerty  as 
returned.'] 

'Of  course  this  allndos  onh-  to      therein;  personal  property  is  not 
levies  on  real  estate  or  interests      contemplated  in  this  work. 


LIS    PENDENS    A^TD   ATTACnMEXT.  469 

No  personal  service.  Notice  hy  publicat ion.  {Cause  pend- 
ing.) 

John,  Savage        )       Certificate  of  levy . 

adv.  [      Recorded  May  26,  ISSl. 

William  B.  Smith.  )      Booh  500,  page  'J  10. 

0.  L.  Jfann,  Sheriff  of  Cook  County^  ill.  (by  Dtpvty), 
certifies,  that  by  virtue  of  a  writ  of  attachment  numbered 
?'S,92S,  to  him  directed  from  the  Superior  Court  of  Cook 
County,  III.,  in  favor  of  William  R.  Smith,  pdaintiff,  and 
against  John  Savage,  d'fendant,  dated  May  23,  ISSl,  he  did 
on  "this"  23d  day  of  May,  ISSl,  levy  on  the  right,  title  and 
interest  of  said  defendant  in  aiid  to  the  following  real  estate, 
to  wit:     {Here follows  the  descrip>tion.) 

Where  the  action  is  duly  prosecuted  and  is  followed  by 
judgment,  execution  and  sale,  the  attachment  may  be  in- 
dicated only  by  references  to  the  issue,  levy  and  return  of 
the  writ,  and  filing  of  certificate,  the  validity  of  the  sale 
depending  upon  the  judgment  and  execution;  but  where,  as 
in  the  above  example,  no  personal  service  has  been  had,  and 
the  notice  is  constructive  merely,  the  notice,  proof  of  pub- 
lication, and  other  acts  necessary  to  confer  jurisdiction  must 
appear.  The  only  ol)ject  of  the  entries  as  above  is  to  show 
the  fact  of  a  lien,  Wliere  the  attachment  has  been  dissolved 
or  the  action  discontinued,  a  continuation  should  disclose 
those  facts  so  as  to  show  the  removal  of  the  lien. 


CHAPTER   XXVI. 


JUDGMENTS    AND    DECREES. 


§  1. 

Defined  and  distin;::iiislied. 

§  12. 

2. 

Operation  iuid  eirect  of  judg- 

ments. 

13. 

3. 

Lien  of  judgments. 

4. 

Duration  of  lieu. 

14. 

5. 

Priority. 

6. 

After-acquired  property. 

15. 

7. 

Formal    requisites  of  judg- 

16. 

ments. 

17. 

8. 

Subrogation. 

18. 

9. 

Satisfaction  and  discharge. 

19. 

10. 

Judgments    against     a    de- 

ceased person. 

20. 

11. 

Exemptions. 

Decrees,  classified  and  dis- 
tinguislied. 

Operation  and  effect  of  de- 
crees. 

Decrees  rendered  on  con- 
structive notice. 

Lien  of  decrees. 

Formal  requisites  of  decrees. 

Abstract  of  decrees. 

Errors  and  defects. 

Operatioji  and  effect  of  pro- 
bate di^crees. 

Foreign  judgments  and  de- 
crees. 


§  1.    Judgmoiits    and    Decrees — Defined    and   Distin- 

gnislied.  Any  distinction  between  judgments  and  decrees 
is  ratlier  fanciful  than  real,  since  all  adjudications  by  a 
court  of  competent  jurisdiction  are  essentially  judgments, 
yet  in  practice  the  term  "decree"  is  used  to  distinguish  the 
determinations  and  orders  of  a  court  of  equity,  Avhile  the 
term  judgment  is  used  to  denote  the  adjudications  of  a  law 
tribunal.  Judgments  are  usuall}''  for  damages,  and  provide 
for  a  definite  recovery  in  money;  decrees  relate  mainly  to 
specific  performance  or  operate  in  some  specific  way  in 
answer  to  the  prayer  of  the  complaint.  In  examinations  of 
title,  judgments  in  personam  are  important  only  as  they 
serve  to  incumber  the  land  of  the  judgment  debtor  with  a 
statutory  lien,  and  when  the  lien  has  been  extinguished, 
either  by  lapse  of  time  or  satisfaction  of  the  judgment,  they 
become  of  no  importance  whatever  and  are  wholly  disre- 
garded.    Decrees,  on   the   other  hand,  operating  directly 

(470) 


JUDGMENTS    AND    DECREES.  471 

upon  the  land,  are  of  controlling  efRcacy.  They  become  a 
part  of  the  general  course  of  title,  and  through  whatever 
mutations  it  may  afterward  pass,  they  always  remain  essen- 
tial links  of  the  chain.' 

§  2.  Operation  and  Effect  ofJu<liJi:moiits.  It  is  a  general 
rule,  that  a  judgment  by  a  court  having  jurisdiction  over  the 
parties  and  the  subject-matter,  rendered  directly  upon  the 
point  in  question,  is  conclusive  as  between  such  parties  and 
in  relation  to  such  point,' and  there  is  no  essential  dilference 
between  the  effect  of  a  decree  in  equity,  and  that  of  a  judg- 
ment at  law,  to  bar  a  subsequent  suit.'  But  such  adjudica- 
tion is  conclusive  only  for  the  purposes  for  whicli  it  was  made, 
and  does  not  conclude  matters  collaterally  introduced  or 
recited.^ 

It  is,  however,  in  regard  to  their  effect  on  the  lands  of  the 
judgment  debtor,  by  reason  of  the  lien  given  by  the  statute, 
that  they  become  at  all  im])ortant  in  examinatiDUs  of  title; 
and  in  pursuing  such  examinations  whatever  other  operation 
or  effect  they  may  have  is  comparatively  of  no  significance. 
This  has  reference,  however,  only  to  judgments  in  p<-')'sonam, 
and  not  to  judgments  in  legal  actions  which  operate  in  rem. 

§  3.  Lien  of  Judgments.  Judgment  liens  on  real  estate 
are  wholly  statutory,  Tlie  lien  only  attaches  and  becomes 
effective  by  force  of  the  statute,  and  only  in  the  mode,  at  tlie 
time,  and  upon  the  conditions  and  limitations  imposed  by  it. 
It  receives  no  vigor  or  even  aid  from  the  coniuioii  law,  to 

'  The  Codt«  of  Procedure,  adopted  both  by   the  bench   and  bar,  the 

in  many  of  tlie  States,  do  not  retog-  term  is  used  and  in  tlie  sense  ab<jvo 

nize  the  distinction   made  in  the  indicated. 

al)Ovc    i)aragraph.      Under    these  *  CJi-ary  f.  . Simmons,  HO  Cal.  221; 

rcMlcs  all  final  dct^-rminationsof  the  S])(ncer  v.  Dearth.  A\\  Vt.  98;  (Jatcs 

ri;^bts  of  the  parti-'S  in  the  artidii  v.  Treston,  41  N.  Y.  \\\\\  Finney  v. 

arecliisscd  as  jiidKmcnts,    witliDut  Hnyil,  2(5  Wis.  3r(0;  Kussell  v.  I'lacn 

rcfcnii'j-  to  the  subjcrt-mattcr,  or  MA  \'.  S.  fldO. 

the  character  of  tin-  relief  grant^-d,  '  lAistt-r  v.  The  Ivicliard  I^usteed, 

In  these  crxlcs  the  word  "  flecree"  is  KM)  M.uss.  <!< !). 

not us<-d,  but  the  t4-rm"  judgment"  M-'ish  y.    IJghtner,    1 1  Mo.    2flM; 

is Hulmtituted  in  itH  place,  as  regards  Land  v.  Keirn,   M  Miss.  'M\;  Eiwt- 

actions  both  of  an  ••<|uit:ibl<"  ami  a  man  v.  I'orter,  11  Wi.s.  UU. 
legal  nature.    In  practice,  however, 


472  AHSTliACTS    OF   TITLE. 

which  it  "was  unlvnown.  At  coiiinion  law,  the  judgment 
civilitor  coiiUl  have  satisfaction  only  out  of  tiic  goods 
and  chattels  and  present  prolits  of  the  lands  of  the  debtor, 
but  ill  the  United  States  it  is  the  p(,)licy  of  the  law  to  make 
all  of  a  man's  property,  real  as  well  as  personal,  lial)le  I'or 
the  payment  of  his  debts,  both  during  his  life  and  after  his 
doaLli,  except  in  cases  of  specified  statutory  exemptions; 
and  a  conve^'ance  of  land  by  a  judgment  tlebtor,  for  a 
valuable  consideration,  after  the  judgment  has  become  alien 
thereon,  and  pending  an  ap})eal,  will  not  defeat  the  lien  of 
the  judgment.  In  such  case  the  grantee  takes  title  subject 
to  the  lien,  and  a  sale  and  deed  made  on  execution  under 
such  judgment  will  pass  title,  unallectcd  by  the  conveyance.' 
In  general,  personal  property  must  first  be  taken  upon  legal 
process,  and  it  is  a  universal  rule  that  this  is  the  primary  fund 
for  payment  of  debts,  after  the  death  of  the  debtor."  A  judg- 
ment lien  on  land  constitutes  no  property  in  the  land  itself,' 
for  the  lien  is  but  an  incident,  not  the  object  of  the  judg- 
ment, and  the  judgment  creditor  is  not  entitled  to  any  ad- 
vantage which  his  debtor  had  not.*  Such  lien  is  subject  to 
all  equities  which  existed  against  such  land,  in  favor  of 
third  persons,  at  the  time  of  the  recovery  of  the  judgment, 
and  with  a  failure  or  extinguishment  of  the  debtor's  title 
the  lien  entirely  ceases  and  is  lost.'  The  statute  usually 
provides  that  the  judgment  shall  be  a  lien  on  the  "  real  es- 
tate" or  "  lands  and  tenements"  of  the  debtor  for  a  specified 
period,  but  is  sometimes  coupled  with  conditions  relative  to 
the  issuance  of  execution,  etc.,  the  observance  of  which  is 
necessary  to  perfect  the  lien.  The  terms  "real  estate"  or 
"  lands  and  tenements,"  as  used  in  this  connection,  are  of 
very  broad  signification,  and  have  been  held  to  include  re- 

'  Dobbins  v.  Wilson,  107  111.  17.  Reporter,  526;  McBane  v.  Wilson, 

*  :\Iitchell  V.  Wood,  47  Miss.  231;  12  Reporter,  325;  Frazer  v.  Tliatch- 

Whitney  i'.  Whitney,  14  Mass.  88.  er,   49  Tex.   26.     A  judgment  rc- 

3  School  Dist.  r.  Werner,  43  Iowa,  covered  against  a  person  after  he 

6-13;  Conrad  v.  Ins.  Co.,  1  Pet.  378.  is  adjudged  bankrupt,  becomes  no 

••  Reed's   Appeal,    13    Penn.    St.  lien  u])on   the  lands  of  the  hank- 

475.  rupt  :  Burgett  v.  Paxtou,  99  111.  288. 

'  Hydraulic  Co.  v.  Loughry,   12 


JUDGMENTS    AXD    DECREES.  473 

raaindei's  and  reversions  vested  under  legal  titles,  as  "vvell  as 
legal  estates  in  possession,'  but  do  not  embrace  mere 
equities'  or  inchoate  rights;  nor  does  a  judgment  against  a 
firm  create  a  lien  upon  the  individual  property  of  the  part- 
ners/ although  if  thev  are  all  nuule  defendants,  they  will  all  be 
severally  liable,  and  all  the  incidents  of  a  judgment  will  at- 
tach to  their  several  estates/  The  lien  of  a  judgment  ren- 
dered by  a  State  court  attaches  only  to  the  land  of  the 
debtor  situate  within  the  county  for  which  the  court  is  held, 
or  in  which  a  transcri})t  has  been  regularly  docketed,  and 
a  certificate  covering  only  the  county  courts  of  record 
is  all  that  is  necessary  to  fully  apprise  intending  pur- 
chasers of  the  condition  of  the  title  so  far  as  same  may 
be  atfected  by  the  adjudication  of  the  State  courts/  But 
judgments  rendered  in  the  federal  courts  have  the  same  lien 
on  the  lands  of  tlie  debtor  within  the  district  that  is  £:iven 
to  the  judgments  of  the  State  courts  within  the  limits  of 
their  respective  territorial  jurisdictions,"  and  it  is  quite  as 
essential  that  the  federal  courts  of  the  district  be  covered  by 
the  search,  as  the  county  courts.  A  judgment,  whether  of 
State  or  federal  courts,  is  not  a  specific  lien  ujion  any  par- 
ticular real  estate  of  the  judgment  debtor,  but  extends  gen- 
erally upon  all  his  real  estate,  subject  to  prior  liens,  legal  or 
equitable.' 

§  4.  Duration  of  Lion.  The  lien  of  judgments  ujion  real 
estate  is  regulated  by  statute,  and  the  genei-al  rule  is,  that  the 
lien  continues  for  ten  3'ears"  from  the  rendition  of  the  judg- 

'  Lawrence  v.   Belgcr,   31    Ohio  tlif  territorial  limits  of  the  State: 

St.  173.  Durliain  r.  Ileaton,  2H  III.  'iM. 

'M;ixon  r.  Dixon,  81  N.  C.  323;  -SelKi-s  u.  Corwin.  5  Oiiii),  308; 
Powell  V.  Knox,  IG  Ala.  3^1.  This  Shrew  v.  J(.nes,  2  M.Lt  an.  7H;  Mas- 
doctrine,  liowever,  is  not  universal,  KiuKiH  v.  Downs,  7  How.  TdH;  Hrown 
and  though  tlie  jifevailing  one  in  v.  Tierce,  7  Wall.  2or»;  15raneh  t'. 
several  of  the  States,  it  in  denie«l:  I>)Wery,  31  Tex.  1)0. 
Bee  Lathrop  v.  Brown,  23  Iowa,  10;  '  Jtodgen*  v.  Bonner,  45  X.  Y,  879. 
Jackson  v.  WilliatuH.  10  Ohio,  09.  Judgment  liens  heing  purely  legal. 

»  Stiwiler  t'.  .\ll<-n.  44   Iowa,    19H,  should  they  fail  at  law.  <an  not  Ixj 

*  Starry  r.  Johnson,  32  Ind.  438.  extftidt-d    in    e<iuity:    Douglann   t'. 

Miaker  r.  Chanilli-r,  ■')1   Ind.   85.  Houston,  ((  1  lammoiid  |(  >liiol.  1({2. 

The  lien  of  a  judgnjent  of  the  Su-  "  In  soiuf  Stales  only  si'Ven  years; 

pn-Mie  Onii't  \n  co-extfUbive  with  this  is  uu  of  IllinoiH. 


47-4  ABSTRACTS    OF   TITLE. 

mcnt,  and  no  longer,  except  tluit  in  a  few  cnmnoratod  cases 
where  a  })arty  is  restrained  from  enforciiig  his  judgment  hy 
appeal,  injunction,  etc.,  the  time  so  consumed  is  excluded 
from  the  comj^utation.  A  purchaser  from  a  judgment  de- 
fendant, after  the  ex))iration  of  ten  years  from  the  rendition 
of  the  judgment,  takes  the  land  discharged  from  the  lien  of 
same,  unless  it  has  been  ])reserved  by  some  of  tlie  excep- 
tions contained  in  the  statute.'  Ordinarily  a  search  for  judg- 
ments covering  a  period  of  ten  3'-ears  is  sulticient,  and  it  is 
not  customary  for  the  examiner  to  certify  judgments  for  a 
longer  time.  Unless  s])ecially  excepted  neither  injunction, 
a})})eal,  nor  other  cause  will  have  the  effect  to  prolong  the 
lien  beyond  the  statutory  period,  as  against  a  purchaser 
from  the  judgment  debtor.*  As  has  been  seen,  a  judgment 
rendered  in  the  federal  courts  has  the  same  lien  on  the  lands 
of  the  debtor  within  the  district  that  is  given  to  a  judg- 
ment of  a  State  court  within  the  limit  of  its  territorial  juris- 
diction;' but  it  is  provided  that  "  judgments  and  decrees 
ren(h}red  in  a  United  States  circuit  or  district  court,  within 
any  State,  shall  cease  to  be  lions  on  real  estate  or  cliattels 
real,  in  the  same  manner  and  at  like  j^criods  as  judgments 
and  decrees  of  the  courts  of  such  State  cease,  by  law,  to  be 
liens  thereon."  * 

§  5.     Priority.     It  has  beeii  held,  that  neither  judgment 
creditors  nor  purchasers  at  sherilf's  sale,  deriving  rights  by 

»  Applegate  v.  Edwards,  45  Ind.  innumbrancors.  etc.,  but  within  the 

329  meaningof  such  anact,all  purchas- 

«Tuckerr.  Shade,  25  Ohio  St. 3o5.  evs  are  to  be  considered  as  pur- 
The  lien  of  a  judgment  is  a  qualified  chasers  in  good  faith,  except  those 
ri-ht,  given  by  law,  and  may  be  ta-  ^''lo  purchase  with  an  actual 
ken  away  by  law:  Houston  v.  Hous-  fr&udulent  intent,  and  mere  notice 
ton.  G7  Ind.  276,  and  when  the  law  of  the  prior  judgment,  either  act- 
is  repealed  upon  which  the  lien  de-  ual  or  constructive,  will  not  ren- 
pends,  the  lien  is  destroyed  by  the  der  the  purcha.se  mala  fide:  Little 
repeal:  Ray  v.  Thompson,  43  Ala.  v.  Harvey,  9  Wend.  157. 
434.  A  familiar  form  of  statutory  ^  Sellers  v.  Corwin,  5  Ohio,  308; 
expression  is,  that  the  judgment  Shrow  v.  Jones,  2  McLean,  78; 
shall  cease  to  be  a  lien  or  incum-  Ma.ssingill  v.  Downs,  7  How.  760. 
branceon  any  real  estate,  as  against  *  U.  S.  Rev.  Stat.,  §  967;  see  Mey- 
piirchaseiL-s  in  good  faith,  subsequent  ers  v.  Tyson,  13  Blatchf.  242. 


JUDGMENTS    AND    DECREES.  4T5 

operation  of  law.  are  regarded  as  purcliasers  for  a  valuable 
consideration,  but  as  mere  volunteers  in  contemplation  of  a 
court  of  equity,'  and  that  the  general  lien  of  a  judgment 
creditor  upon  the  lands  of  his  debtor  is  subject  to  all  equities 
which  existed  against  such  lands,  in  favor  of  third  persons, 
at  the  time  of  the  recovery  of  the  judgment,"  Generally 
this  is  true,  yet,  under  the  statute,  as  it  exists  in  a  majority 
of  the  States,  the  lien  of  a  docketed  judgment  lawfully  ob- 
tained at  the  suit  of  any  party  against  the  person  in  whose 
name  the  title  to  such  land  appears  of  record,  will  have 
priority  over  that  of  an  unrecorded  mortgage,  or  conveyance.' 
These  statutes  protect  judgment  creditors  as  bona  fide  pur- 
chasers for  a  valuable  consideration,  whose  liens  arise  while 
the  record  title  appears  in  the  judgment  debtor,  although 
in  fact  he  may  have  conveyed  the  property.  As  between 
judgment  creditors  there  is  no  general  rule  respecting  pri- 
oritv,  the  matter  being  usuallv  refi:ulated  bv  statute.  Judjr- 
ments  rendered  at  the  same  term  of  court,  or  on  the  same 
day  in  vacation,  ordinarily  have  no  priority  over  each  other, 
but  this  is  by  no  means  a  uniform  observance,  and  it  has 
been  held,  tliat  when  several  judgments  are  rendered  at  the 
same  term  of  court,  but  on  different  days,  such  judgments  do 
not  relate  to  the  first  day  of  the  term  and  become  effective 
as  of  that  date,  but  are  liens  on  the  real  estate  of  the  judg- 
ment debtor  only  from  the  dates  at  which  they  are  respectively 
entered  or  docketed,  and  take  ])riority  accordingly.*  "When 
lands  are  incumljcred  simultaneous  witli  tlieir  ac(pnsiti()n, 
the  incumbrance  being  to  secure  the  u?ipaid  ])urchase  money, 
the  authorities  are  unifoi-m  in  declaring  that  sufh  incum- 
brance will  take  priority  over  the  lien  of  a  judgment  alrea<ly 
docketed.*  "  The  reason  for  this  is  readily  found,"  observes 
Freeman,  "  when  we  rememl)er  that  it  is  a  universally  recog- 
nized princi})le  of  law  that  no  judgment  lieu  can  be  a  charge 

'  DaviH  7'.  Hamilton,    .'50  Misn.  812.  W<m>(1    v.    Young.    88    lown,  102; 

»Hy<lravilic  (.<>.  v.    \^A\\:)\r\\    12  Mis-s.  ValloyCo.    v.  U.  11.    Co.,    58 

HfI«)rUT.  ri^n;  ApiKTWjn  v.  HurK»tt,  Miss.  HlH. 

;}:{  Ark.  :5-'H.  «Aii(l«THun  r.  Tu<l;    %\  M.l.  225. 

»I>;ush  y.    Ilanlick,  5  Dillon,  005;  *CurU.sv.  Kuot,   L'O  III.  h\\ 


47G  ABSTRACTS   OF    TITLE. 

ui)on  any  greater  interest  than  tlie  defendant  owns.  A  ]inr- 
chasor  who  has  paiil  only  a  i)ortion  of  the  sum  contracted 
to  be  paid,  has  no  title  Avhich  is  not  liable  to  be  subjected 
to  the  lien  of  the  vendor  for  un])aid  i)urchase  money.  A 
judgment  against  such  a  vendee  must,  tliercfore,  be  subordi- 
nate as  a  lien  to  that  held  by  the  vendor;  and  for  this  pur- 
pose, it  is  perfectly  immaterial  whether  the  claim  is  put  in 
the  shape  of  a  vendor's  lien,  or  of  a  mortgage  to  secure  the 
payment  of  purchase  money."  ' 

§  G.  After-a(Mj[uire«l  Property.  It  is  a  well  established 
doctrine  of  the  common  law,  that  the  lien  of  a  judgment  at- 
taches to  and  binds  land,  the  title  to  which  is  subsequently 
acquired  by  the  judgment  debtor,  and,  where  the  statute  is 
silent  on  the  subject,  this  rule  has  been  generally  received  and 
acted  upon  throughout  the  United  States."  The  lien  does  not 
take  effect  by  relation  as  of  the  date  of  the  judgment,  but  at- 
taches to  such  after-acquired  property  only  from  the  time  it 
is  acquired  by  the  judgment  debtor,  and  the  lien  of  all  judg- 
ments in  existence  when  the  debtor  obtains  the  property  at- 
taches alike." 

§7.  Formal  Requisites  of  Judgments.  No  particular 
form  of  Avords  is  necessary  to  be  employed  in  rendering 
judgments,'  provided  they  are  certain  and  find  the  sum  for 
which  they  are  rendered,  but  failing  in  this,  they  are  fatally 
defective.'  The  certainty  required  has  reference  both  to 
the  parties  and  the  recovery,  for  the  judgment  is  regarded 
as  a  unit  and  must  comprehend  all  the  parties  then  before 
the  court,  while  the  recovery  must  be  certain  and  s])ecific 
in  the  amount  with  nothing  left  to  implication;  thus  a  judg- 
ment for  "  four  hundred  and  sixty-one  and  53-100  damages  " 
is  not  for  a  certain  definite  sum  of  money,  and  is   therefore 

'  See  contra,  Ryner  v.  Frank,  105  *  rnii].!  r.  Hall.  91  111.  223;  Church 

111.  326.  V.  Cnissman,  41  Iowa,  373. 

'Thulemeyer    u.  Jones,  37  Tex.  "Ry.  Co.  u.  Chicago,  53  111.   80; 

560,  Carpenter  v.   Sherfy,   71  lU.   427; 

*  Coyce  V.  Stovall,  50  Miss.  396;  Lirette  v.    Carrane,    27    La.  Ann. 

Bahcock  V.    Jones,    15    Kan.   29G;  29S;  Eandrilph  v.  Metcalf,  G  Coldw. 

Wales  V.  Bogue,  31  111.  464.  (Tenn.)  400. 


JUDGMENTS    AND    DECREES.  4<  ( 

a  nullity,'  and  wliere  only  numerals  are  used  "without  some 
mark  or  word  indicating  for  what  they  stand,  the  judgment 
is  insufficient."  Otherwise,  to  constitute  a  judgment  record 
valid  upon  its  face  so  that  it  may  be  enforced  by  action, 
nothing  more  need  appear  by  it  than  that  the  court  had  ju- 
risdiction of  the  subject-matter  of  the  action  and  of  the  par- 
ties, and  that  a  judgment  was  in  fact  rendered.'  In  the  ab- 
stract it  is  customary  to  give  the  name  of  the  forum,  to- 
gether with  the  case  number  or  some  other  index  for  the 
purpose  of  reference;  the  full  title  of  the  case,  and  a  state- 
ment of  the  fact  of  judgment,  together  with  the  amount  for 
which  it  was  rendered.  A  s\^nopsis  of  the  judgment  is  rarely 
given,  nor  is  it  at  all  necessary,  \'et  the  examiner  should 
always  carefully  examine  same  for  errors  of  form  or  sub- 
stance, as  the  omission  of  parties,  imperfect  recitals  of  re- 
covery, etc.  Where  the  judgment  becomes  dormant  uidess 
followed  by  execution  it  becomes  necessary  to  show  the  is- 
suance and  return  of  same,  provided  such  facts  appear  of 
record.  A  minute  of  judgments  in  personam  may  be  shown 
in  this  manner: 

Jufl(jrn€7its. 


Ill  the  Superior  Court  of  Cooh  County^  III. 
Henry  W.  Newman        "1       Case  No.  53^166. 
V.  i-     Assumpsit. 

William  Jasjyer.  J      Fee  Book  35,  page  685. 

Judgment  rendered  against 
defendant,  Dec.    9,  IST.'i,  for 
$G3J^.92. 
Ero'ut'om  No.  9,2,003  issued,  dated  Dec.  0,  lS7Jf,  returned 
no  part  satisfied. 

Any  a<lditional   matter  that  may  seem  material,  as,  the 
issuance  of  alias  or  j)luries  executions;  remission  or  satisfac- 

'  CaqH-nU-r  v.  Slnrfy.  71  III.  427.  •  Ma.\ucll  v.  Stewart,  22  Wull.  77. 

»I^'iwn-nc«  r.  Fast.  20   III.    8;jb; 
Avurj'  V.  I3ulx-uck,  U-jIll.  175. 


47S  Ar.STKACTS    OF   TITLE. 

tion  of  any  ]iart  of  tlio  judgment,  etc.,  may  be  shoAvn  after 
this  point,  with  such  tletail  as  may  be  necessary,  thus: 

Dec.  IS,  lS7k,  Plaintlfs  remit  $103.61. 
Dec.  SO,  1S74;  Execution  {alias)  issued  and  returned  satis- 
fied for  $100.00. 

."Wliere  the  lien  of  tlie  judgment  is  independent  of  execu- 
tion the  note  of  the  issuance  of  same  is  immaterial,  except  as 
it  may  tend  to  show  a  reduction  or  partial  satisfaction;  but 
in  many  of  the  States,  when  execution  is  not  issued  on  a 
judgment  within  one  year  from  the  time  of  its  rendition,  the 
lien  thereafter  ceases  and  is  lost.  Executions  may  also 
become  operative  as  liens  from  the  time  they  are  delivered 
to  the  sheriff,  or  other  proper  officer,  to  be  executed,  Avhen 
issued  during  the  statutory  period,  even  though  the  general 
lien  of  the  judgment  has  been  lost  by  laches.  Wherever  the 
rule  last  stated  prevails  the  issuance  of  execution  becomes 
almost  as  important  as  the  rendition  of  the  judgment,  and 
in  abstracting  the  judgment,  careful  search  must  also  be 
made  for  executions,  and  should  none  appear  of  record 
it  would  seem  that  such  fact  should  be  affirmatively  stated 
rather  than  left  to  inference.  There  can  be  no  doubt  that 
this  course  would  frequently  save  inquiries  by  counsel  and 
greatly  expedite  his  labors.  In  continuations,  where  the 
former  examination  shows  a  judgment  upon  Avhich  no 
execution  appears  to  have  issued  prior  to  the  date  of 
such  examination,  the  subsequent  steps,  if  any,  should 
appear  in  the  continuation,  either  by  re-exhibiting  the  judg- 
ment and  resulting  proceedings,  or  by  setting  forth  the  sub- 
stance of  such  proceedings  in  a  note.' 

§  8.  Subrogation.  Where  lands  incumbered  by  a  judg- 
ment are  conveyed  with  covenants  of  warranty  to  a  purchaser 
for  full  value,  the  grantee  and  his  successors  in  interest 
occupy  a  position  similar  to  that  of  sureties  for  the  judgment 
debtor  and  are  entitled  to  the  same  equities.  A  release  by 
the  judgment  creditor,   without   their  consent   and   with 

'  See  also  "  Satisfaction  and  Discharge,"  infra. 


JUDGMENTS    AND   DECREES.  479 

knowledge  of  their  rights,  of  any  security  to  which,  in 
equity,  they  would  be  entitled  on  payment  of  the  judgment, 
discharges  the  lien  of  the  judgment.' 

§  9.  Satisfaction  and  Disfhargo.  Judgments  may  be 
satisfied  by  an  entry  upon  tlie  record;  by  a  formal  release 
or  satisfaction  filed  in  the  case;  *  or  by  a  return  of  the  exe- 
cution fully  satisfied.  The  particular  method  employed  is 
of  little  moment  to  the  examiner  and  only  noticed  b}'  him 
in  case  of  a  continuation,  Avhere  the  former  examination 
shows  a  subsisting  unsatisfied  judgment.  Even  in  this  in- 
stance it  is  not  absolutely  necessary  that  it  be  noticed  in  the 
abstract,  as  his  certificate  to  the  effect  that  there  are  no 
judgments  unsatisfied  of  record  would  be  sufficient  to  show 
the  discontinuance  of  the  lien,  yet  it  is  recommended  as  the 
better  practice,  tliat,  where  the  former  examination  shows 
unsatisfied  judgments,  but  which  subsequent  to  the  date  of 
such  examination,  and  prior  to  that  of  the  continuation 
have  been  discharged  or  satisfied,  and  which  if  unsatisfied 
would  still  be  a  lien,  such  satisfaction  or  discharge  should 
affirmatively  ajipear.  A  simple  note  will  in  most  cases  be 
all  that  is  required,  thus : 

Note:  In  case  No.  IfifiTS  in  the  Superior  Court  of  Cook 
County  {Smith  v.  Jones\  judgment  was  rendered  against  the 
defendant,  on  Od^)her  10,  1872,  for  $250.00  and  cns/.^,  v:hi<'h 
was  satisfied  of  record  December  i,  1S72,  bi/  jjl<ii/(t{tf''s  attor- 
ney. 

To  this  simple  statement  may  be  added  the  mention  of 
any  other  matter  which  may  seem  material,  as : 

Execution  No.  18,139  issued  thereon  dated  October  11, 1872^ 
is  not  returned. 

'Barnes  v.   Mott,   (M  N.  Y.  y'J7.  cJgo  of  tluMMiuilaM.' ri^lita  of  the 

Sf>  h<'lcl,  wlitTi;  after  Buch  convt-y-  owner  and  witliout  liis  consent,  ro- 

ance,  the  juilf^inent  (l<'l)t<)r  gave  an  leased   tho  min-ties  in   tho  uniler- 

undertaking  on   apixal    from   the  Uiking.      And     see     EllKworth    t). 

judgment    H<Turing    the    amount  Ixnk\v«MMl,   42   N.  Y.  SS);  Hank  of 

thereof  an<l  staying  execution,  and  All)ion  r.  Hums,  40  N.  Y.  170. 

aft'-r  aflinn.ince   of  the  judgm<nt  ' 'Hie   Katihfaction  pi«'<'e,   tliougU 

the  judguu-nt  cri"»lit«<r,  with  knowl^  llK-d,  is   not  a  n-eord,  Ixit  a  niero 


4:^0  Ar.sTiiACTS  of  title. 

§  10.  ,Tiulirni(Mit  Aijainst  a  BoroascMl  Porson.  It  is  a 
rule  of  the  coiniiioii  law,  and  one  generally  ol)s«u've(l  in  all 
the  States,  that  a  judgment  against  a  deceased  person,  either 
natural  or  artilicial,  is  absolutely  void,  and  the  fact  that 
service  may  have  been  obtained,  or  the  suit  commenced  be- 
fore the  death  of  the  party,  in  the  a1)sence  of  any  statutory 
provision  on  the  subject,  does  not  affect  the  operation  of 
the  rule.' 

§11.  Exemptions.  The  homestead  acts  of  the  different 
States  have  created  an  exception  to  the  general  rule  which 
subjects  the  lands  of  the  debtor  to  the  lien  of  judgments 
recovered  against  him,  and  an  exemption  from  levy  and 
forced  sale  is  made  of  certain  lands  which  shall  be  occu})ied 
by  the  debtor  as  a  homestead.  This  exemption  consists  either 
of  a  specific  allotment  of  land  determined  by  fixed  boundaries, 
or  of  an  estate  of  limited  duration,  measured  by  a  definite 
money  value  and  without  reference  to  the  quantity  of  land 
occupied.  The  lien  of  the  judgment  does  not  affect  such 
homestead,  either  in  the  possession  of  the  judgment  debtor 
or  his  grantee. 

§  12.  Decrees  Classified  ami  Distinguished.  Decrees 
are  classified  as  interlocutory  and  final,  the  former  being 
one  Avhich  only  partially  disposes  of  the  subject-matter,  or 
of  a  particular  portion  thereof,  leaving  something  still  to 
be  done;  the  latter,  disposing  of  the  whole  subject,  deciding 
all  cpiestions  in  controversy,  ascertaining  the  rights  of  all 
the  parties,  and  awarding  the  costs.'  The  fact  that  some- 
thing remains  to  be  done  to  carry  out  or  enforce  the  decree 

warrant  to  the  clerk  to  enter  satis-  Wliile  if  execution  had  been  issued 

faction  on  the  roll:  Lowns  t'.  Rem-  and  levied  during  the  lifetime  of 

sen,  7  Wend.  35.  such  defendant,   a  sale  after  his 

'Burke  v.   Stokely,  65  N.  C.  569j  death  will  be  valid  without  any 

Life  Assoc,  of  America  v.    Fassett,  notice  to  his  legal  representatives 

102  111.  315.     Where  the  judgment  or  revivor  by  scire  facias. 

was  recovered  prior  to  defendant's  "Taj-lor  v.   Reed,   4  Paige,  561; 

death  it  may  be  revived  and  en-  Mills  v.  Hoag,  7  Paige,  18;  Kane  v. 

forced   against  his  estate  by   set.  Whittick,  8  Wend.  221. 
fa.:  Brown  v.   Parker,  15   111.  307. 


JUDGMENTS    AXD    DECREES. 


4S1 


does  not  render  it  any  the  less  final,'  but  the  true  test  seems 
to  be,  that  no  further  necessity  exists  for  bringing  the  cause 
again  before  the  court.* 

§13.  Operation  and  Effect  of  Decrees.  A  formal  decree 
operates  differently  from  a  judgment,  but  its  effect  is  the 
same,  and  the  same  general  rules  ap]ily  Avith  equal  force  to 
either.  As  i^es  adjudicata  it  is  conclusive  upon  the  question 
actually  presented  or  directly  involved,"  though  not  upon 
collateral  issues,*  and  embraces  not  only  the  questions  act- 
ually contested  and  determined,  but  also  all  those  Avliich 
might  have  been  if  they  had  been  reasonabW  presented.'  It 
is  binding  on  parties  and  privies  and  imports  such  absolute 
verity  that  it  can  not  be  attacked  collaterally  on  account  of 
mere  irregularities  in  the  proceedings  by  one  not  a  party  in 


'  To  avoid  the  confusion  incident 
to  the  use  of  the  word  judgi'i^nt, 
in  two  senses,  one  as  interlocu- 
tory, and  the  other  as  final,  the 
codes  designate  the  former  as  or- 
ders, and  do  not  recognize  such  a 
thing  as  an  interlocutory  judg. 
ment. 

*  Mills  r.  Hoag,  7  Paige.  18;  But- 
ler f .  Lee,  33  How.  251.  An  inter- 
locutory decree  is  properly  a  decree 
pronounced  for  the  purpose  of  as- 
certaining matter  of  law  or  fact 
preparatory  to  a  final  decree.  There- 
fore, when  it  happens  that  some 
material  circumstance  or  fact  nec- 
essary to  be  made  known  to  the 
court  Ls  either  not  stated  in  the 
pleadings,  or  is  so  imperfectly  as- 
certained ijy  them  tiiat  a  court  is 
uii:il)le  to  determine  finally  be- 
tween the  partii^;  and  therefore, 
a  reference  to,  or  an  in<juiry  be- 
fore a  m.'Lster,  or  a  trial  of  facts 
before  a  jury  Ix'comes  neces-sary, 
the  decree  entered  for  that  jmr- 
pose  is  an  interlocutory  decree- 
The  court,  in  the  meantime,  hus- 
81 


pends  its  final  decree,  until  by  the 
master's  report,  or  verdict  of  the 
jurj',  it  is  enabled  to  decide  finally: 
1  Barb.  Cli.  Prac.  *  326;  Seaton  on 
Decrees,  2;  1  HaiT.  Ch.  Prac.    420. 

*  Geary  v.  Simmons,  39  Cal.  224: 
Cannon  v.  Brame,  45  Ala.  262; 
Foster  v.  The  Richard  Busteed,  100 
Mass.  409;  People  v.  Brislin,  80  111. 
423;  State  v.  Ramsburg,  43  Md. 
325.  When  a  judgment  or  decree 
is  rendered  by  c<jnsent,  or  as  the 
result  of  a  co:npn)mise,  it  can  not 
be  admitted  as  res  adjtulicctta: 
Wadhams  v.  Gay,  73  111.  415.  And 
such  decree  would  only  bind  the 
parties  consenting,  aiul  would  not 
alTect  the  rights  of  otlifi-s  not 
made  parties  to  the  suit,  but  wlio 
should  have  been:  Dibit'!!  r.  Car- 
lisle, 51  Miss.  785. 

♦Land  v.  Keirn,  52  Mi^s.  341; 
Eiustman  v.  Portt-r,  14  Wis.  39; 
Fish  V.  Liglitri.-r,  44  Mo.  2(iS. 

>  IVtiTsiiie  v.  Thom;is.  2N  Ohio 
St.  596;  Bates  r.  S|K)oner,  45  lud. 
4H0;  Huiigcrford's  .\p|M';i!.  41  Conn. 
822;  Tullxit  r.  Toild,  5  Dana,  193. 


4S2  ABSTRACTS    OF    TITLE. 

interest,'  nor  can  di-fects  therein  be  set  up  by  a  stranger  to 
the  record,  for  the  ])urpose  of  defeating  a  chum  of  right 
to  hind  based  thereon.'  It  is  evidence  of  itself  to  sustain 
a  conveyance  made  under  it,'  but  Avherc  it  does  not  in  terms 
divest  the  title  of  the  defendant,  but  merely  directs  the  exe- 
cution of  a  deed,  until  such  execution,  the  legal  title  remains 
in  the  defendant.*  A  reversal  of  the  decree  does  not  divest 
the  title  of  a  purchaser  in  good  faith,'  who  is  a  stranger  to 
the  record,  but  all  rights  acquired  by  jiarties  to  the  suit,  as 
]iurchasers  of  the  land  under  the  decree,  fall  with  the  rever- 
sal.' A  decree  upon  a  matter  not  involved  by  the  cause,  nor 
in  issue  by  the  pleadings,  is  coram  non  judice  and  void,' 
and  will  be  treated  as  a  nullity,  even  in  a  collateral  proceed- 
ing.' 

§  14.  Decrees  Rendered  on  Constrnctive  Notice.  The 
remarks  of  the  last  section  must  l)e  understood  to  apply  more 
particularly  to  decrees  which  have  been  rendered  upon  a  full 
hearing  of  the  case  and  with  all  the  parties  properly  before 
the  court.  Where,  however,  there  has  been  no  personal 
service  upon  the  defendants,  and  such  persons  are  before  the 
court  only  constructively  by  a  substituted  service,  somewhat 
ditTerent  rules  prevail.  The  law  will  not  hastily  preclude  a 
person's  rights  Avhen  he  has  had  no  opportunity  to  be  heard; 
hence,  a  decree  entered  in  such  a  case  does  not  become  final 
and  conclusive  until  some  time  has  elapsed  during  which  the 
defendants  may  come  forward  and  urge  any  matter  they 
may  have  in  extenuation  or  defense.  The  time  allowed  for 
this  purpose  as  well  as  the  method  by  which  such  defendants 
are  let  in,  are  matters  of  local  statutory  regulation,  but  the 
principle  is  of  general  observance,  that  all  persons  acquiring 

'  Mj-ler  V.  Hughes,  60  Mo.  105.  *  Taylor    v.   Boyd,   3  Hammond 

*  Latlirop  V.    American    Emig.  (Ohio),  35B. 

Co.,  41  Iowa,  547;  Pettitu.  Cooper,  "Fishback  v.  Weaver,   34    Ark. 

9  Lea  (Tenn.),  21.  5G9;  Powell  v.  Rogers,  105  111.  318. 

3  Grebbin  v.  Davis,  2  A.  K.  Marsh.  ■>  Meredith  v.  Little,  6  Lt\a  (Tenn.), 

(Ky.)  17;   Dunklin  v.  Wilson,   64  517. 

Ala.  162.  ^  Monday  v.  Vail,  34  N.  J.  L.  418. 

■•Peak  V.  Ligon,  10  Yerg.  (Tenn.) 
469. 


JUDGMENTS    AND    DECREES.  4S3 

rights  under  such  decree,  before  it  becomes  final  and  con- 
clusive, are  equally  affected  with  notice  of  its  conditional 
character;  and  all  interests  so  acquired,  whether  for  a  valu- 
able consideration  or  otherwise,  are  entirely  dependent  upon 
the  confirmation  of  the  decree,  which,  if  vacated,  renders  all 
]>roceedings  under  it  a  mere  nullity,  and  of  this  all  persons 
dealing  with  the  land  must  take  notice.' 

§  15.  Lien  of  Decrees.  Decrees.equally  with  judgments, 
create  liens  upon  the  lands  of  the  losing  party.  This  follows 
as  an  incident  where  there  is  a  money  decree  in  personam,^ 
while,  by  statute,  where  a  decree  is  pronounced  requiring 
a  party  to  perform  some  act  other  than  the  payment  of 
money,  it  may  be  made  a  lien  upon  the  property  of  such 
])arty  until  he  shall  ])erform  the  acts  menfioned  in  the 
decree.  In  the  first  instance  the  lien  has  the  same  force  and 
efi'ect,  and  is  subject  to  the  same  limitations  and  restrictions 
as  judgments  at  law.' 

§  10.  Formal  Kequisites  of  Decrees.  Unlike  judg- 
ments in  personam^  which  are  ordinarily  shown  only  by  a 
brief  reference,  decrees  and  judgments  in  rem,  or  which 
affect  or  imjdicate  title,  are  copied  almost  verbatim,  or  at 
least  set  forth  with  little  condensation.  The  formal  parts  of 
decrees  are,  the  caption  and  title  of  the  cause;  the  recitals; 
and  the  ordering  or  mandatory  clause.  A  fourth  jiart, 
called  the  declaratory  clause,  is  sometimes  added.'  The 
strictly  formal  parts  which  relate  to  the  caption,  etc.,  may  in 
some  cases  be  abbreviated,  particularly  when  the  decree  is 
shown  in  regular  order  as  a  part  of  the  synopsis  of  the  pro- 
ceedings of  the  court  which  pronounced  it,  but  when  the  ab- 

'Southt-m  Bank   r.  llumjilinys,  'Karnes  r.  Harper,   4«   111.    527; 

47  111.  227.  Eunu-H   v.    Gfrinania  Tunivcrt'in, 

'Karnes  v.   Harper,  48  111.527;  74  III.  .'iO. 

Yackle  r.  Wi^htman,  103  111.    109.  ♦Wlun  tliid   is  used  it  iniuu.li- 

No  p^-rw.nal  <l«-creec:ui  beniidcnd  att-ly    pret-tHk-H  the  ordering  part, 

in    wjnity    aKainst    defeiidatw   not  and  cunKi.sts  of  a  df<larati<in  of  the 

ix'rs«.)naily  before  the  court;   as   to  riKhtii    of   the   partii-H.      It   ia    not 

huch  defendantii   the   hill  nm«t,he  niMrssary,  howt-vir.  and    its   onun- 

dihnii»*M<l  without  pn-jiidice;  Vir-  bioii  will  not  invalidate  the  decree, 
den  1-.  NeedleH,  Ob  111.  3«0. 


4^^4  ABSTRACTS   OF   TITLE. 

sti-ac't  is  made  from  a  cortificd  coin'  recorded  witli  the  recorder 
of  deeds,  it  is  advisable  to  show  these  ])arts  also.  The  cap- 
tion shows  the  court,  term,  day,  etc.,  on  which  the  decree  was 
rendered;  the  name  of  the  presiding  judge  or  chancellor;  and 
the  title  of  the  cause.  The  recitals  are  now  very  meager  and 
refer  briefly  and  generally  to  the  hearing,  pleadings  and  proofs, 
and  to  the  fact  of  their  having  been  duly  considered  by  the 
court.  Formerly  it  was  customary  to  set  out  at  great  length 
tiie  pleadings,  evidence,  etc.,  but  this  practice,  by  reason  of  its 
expense  and  inconvenience,  has  been  discontinued,  and  the 
inducement  of  the  recitals  reduced  to  a  bare  mention," 
although  in  some  States  the  evidence  still  is,  or  may  be, 
preserved  in  some  instances  in  this  manner."  The  recitals 
lieing  brief,  should  be  shown  in  full.'  The  ordering  or 
mandatory  clause  is  the  vital  part  of  the  decree,  and  must 
always,  with  the  exception  of  the  part  referring  to  the 
costs,  be  co])ied  verbatim.  This  part  contains  the  specific 
directions  of  the  court  Avith  reference  to  the  subject-matter 
l)efore  it,  and  provides  for  the  final  disposition  of  the  rights 
of  the  litigants.  All  decrees  must  be  founded  on,  and  in 
conformity  with,  the  allegations  and  proofs;  and  can  not  be 
based  upon  a  fact  not  put  in  issue  by  the  pleadings;  *  when 
not  supported  by  the  pleadings  they  are  as  fatally  defective 
as  though  not  sustained  by  the  verdict  or  findings." 

§  17.     Abstract  of  Decrees.     From  what  has  been  said 
it  will  be   perceived  that   an  abstract   of  a  decree,  unless 

'  Dousman  v.  Hooe,  3  Wis.  466.  recitals    should    be    fully    stated. 

'Cooley  V.  Scarlett,  38  111.  316;  See  Tiu-ner  r.  Jenkins,  79  111.  228; 

"Walker  1?.  Gary,  53  111.  470.  Rivard  r.    Gardner,    39    111.    125; 

"Though  formerly  a  stricter  rule  Prettyman  v.  Barnard,  37  111.  105; 

prevailed,   every    reasonable    pre-  Haworth   v.   Huling,    87    111.    23; 

sumption  is  now  indulged  in  favor  Belden  v.  IMoeker,  2  Lans.  (N.  Y.) 

of  the  jurisdiction   of  a  court  of  470. 

general  jurisdiction,  and  its  find-  ''I  Barb.  Ch.  Prac.  *339;Cameal 

ings  in    decrees    are    held  to    be  v.  Banks,  10  Wheat.  181;  Maunday 

prima  facie  evidence  of  the  exist-  v.  Vail.  34  N.  J.  L.  418. 

ence  of  jurisdictional  facts,  while  ^  Bachman  v.  Sepulveda,  39  Cal. 

the  recitals  frequently  have    the  688;  ^larsimian  v.  Conklin,  21  N. 

further  effect  to  cure  defects  of  J.  Eq.  546;   Parsley  v.  Nicholson, 

service,  etc.     For  this  reason  the  65  N.  C.  207. 


JUDGMENTS    AND    DECREES.  4S5 

same  preserves  the  evideuce,  can  consist  of  little  else  than 
a  copy  of  such  decree.  The  recitals  ma}'  permit  of  a  little 
condensation,  and  the  mandatory  parts  that  refer  to  the 
costs  are  also  susceptible  of  the  same  treatment.  A  little 
of  the  verbiage  of  the  caption  may  also  be  condensed  and 
omitted,  thus : 

Circuit  Court  Cook  County. 
Alexander  Steicart      )        June  Term,  1883. 
vs.  V        Jn  CJiancery. 

Charles  Daltvn.         )        liecites,  that  this  cause  having 
come  on  to  be  heard  ujpo7i    the 
pleadings  herein  aiid  the  proof s  taken  in  said  cause,  and  hav- 
ing heen  argued  hy  counsel,  and  the  court  having  duly  con- 
sidered  the  same,  and  heing  falhj  advised  in  the ])remisc8;  ' 

Doth  order,  adjudge  and  decree,  that  the  said  deed  of  con- 
veyance from  William  Jones  and  wife  to  the  defendant, 
Charles  Dalton,  hearing  date  January  Jf,  1882,  of  said  prem- 
ises, to  wit:  [set  out  descrijttifm]  and  recorded  in  the  re- 
corder's office  of  Cook  County,  III.,  as  Doc.  120,2Jf3,  he,  and 
the  same  is  herehy  set  aside  and  declared  null  and  void,  as 
against  the  complainant,  his  heirs  and  assigns,  as  a  cloud 
upon  tJie  title  of  the  complainant;  and  that  the  defendant, 
Charles  Dalton,  do  deliver  up  the  said  deed  to  he  canceled  hy 
the  clerk  of  this  courts 

Further  ordered,  that  defendant  pay  costs  of  this  suit,  to 
he  taxed,  and  that  execution  issue  therfor. 

§  IS.  Krrors  and  Defects.  EiTors  and  defects  in  jiidir- 
ments  or  decrees  require,  when  ai>jtaj'ent,  appropriate  nieii- 

'  R<'citals  in  a  <l«'froe  of  a  r-ourt  for  canci-ll.ition.  wlnTf  it  lui.'t  iK'cn 

of  inferior  jurisdiction  of  tin*  facts  (b-cian'tl  iimiM-rativc.  and  may  |kw- 

necfssary  to  give  juri.s<liction  are  Kibly  tlo   harm    if  allowed   to  re- 

jjn'ma /acie  evidence  of  sue li  faetw,  main  in  defendant's  liandb:  Keemlo 

subject  to  bo    contradicted,    but  v.  Conrad,  V2  I'hila.  (Pa.)  524.     A 

sufficient /Jer  AC  to  upljold  the  pro-  decree  canceling  a  deed  may  di- 

ceeilin^  if  nncontradictt'd:    liddi-n  re<t  the  (  lerk  to  t-nter  the  fact  on 

V.  MfH'ker.  2  LanH.  (N.  Y.)  470.  the  margin  of  the  re«-ord  of  such 

»  I-^juity  will  K<*nerally    eomiKd  cancele<|  deed:     JoneH  v.   I'orter, 

an  inHtrutnent  U)  l>e  delivered   up  Tt\i  Mii«.  02^. 


480  AUSTRACTS    OF    TITLE. 

tioii.  But  the  defects  that  are  noticeable  are  mainly  con- 
lined  to  matters  of  practice,  form,  etc.,  and  vital  defects, 
from  their  very  nature,  are  frequently  undiscernible.  Thus, 
a  jud^Muent  against  an  individual  as  a  defendant  by  a  namo 
wliicli  is  not  his  in  contemplation  of  la\v,  can  not  ordinarily 
be  enforced  against  him,'  and  certainly  is  not  construct- 
ive notice  of  a  lien  upon  his  land.'  It  has  in  some 
instances  been  held  that  a  judgment  in  an  action  in 
which  the  defendant  is  named  in  all  the  i)roceedings 
therein,  by  a  different  name  from  that  of  a  particular 
existing  individual,  will  be  of  no  avail  against  the  lat- 
ter, even  if  entered  up  against  him  by  his  real  name,  al- 
though process  was  in  fact  served  upon  him,  Avhen  the 
name  of  the  defendant  in  such  process  was  not  his;  because, 
unless  he  actually  appeared  in  the  action,  no  jurisdiction 
over  him  was  obtained  therein  l:>y  the  service  of  such  proc- 
ess.' Eut  the  weight  of  authority  would  seem  to  indicate 
that  if  the  process  is  served  on  the  party  intended  to  be 
served,  by  a  wrong  name,  and  he  fails  to  appear  and  plead 
the  misnomer  in  abatement  and  suffers  judgment  to  be  ob- 
tained against  him,  he  is  concluded,  and  in  all  future  litiga- 
tion may  be  connected  with  the  suit  or  judgment  by  proper 
averments.*  In  compiling  an  abstract,  however,  the  two 
matters  just  noted  would  not  be  treated  alike.  In  the 
former  case,  the  name  of  the  judgment  debtor  not  being  the 
same  as  the  party  whose  title  is  under  consideration,  the 
judgment  might  with  safety  and  projn'iety  be  disregarded; 
as  where  the  name  of  the  land  owner  is  "  Freeman  "  Jones, 
and  that  of  the  judgment  debtor  "  Herman  "  Jones.'  But 
in  the  latter,  though  the  judgment  debtor  was  sued  by  a 
wrong  name,  yet  inasmuch  as  judgment  was  entered  against 

'  Famham  v.  Hildreth,  32  Barl).  *  See  Bloonififld    R.   R.     Co.    r. 

277;  Thomas  v.  Desney,  57  Iowa,  Burgess,  82  lud.  83;  National  Bank 

58.                              '  V.  Jaggers,  31  Md.  38. 

'Tliomas  v.  Desney,  57  Iowa,  58;  *Fainham  v.  Hildreth,  32  Barb. 

Grundies  v.  Reid,  107  111.  .304.  277;  Thomas  v.   Desney,  57  Iowa, 

'  Moulton  t'.  De  Macarty,  6  Rob.  58;  Kennedy  v.   Merriam,   70  111. 

(N.  Y.)  470;  Ford  v.  Doyle,   37  Cal.  228. 
346. 


JUDGMENTS    AND    DECREES.  4ST 

him  by  his  true  name,  such  judgment  must  substantially 
appear,  together  with  so  much  of  the  ]U"ocee(lings,  inchuling 
a  synopsis  of  the  process  and  return  as  will  show^  the  repug- 
nancy or  invalidity,  and  the  opinion  of  title  should  specific- 
ally pass  upon  the  facts  thus  exhibited,  A  more  ])erplex- 
ing  question  arises  in  case  of  correct  Christian  and  surnames, 
but  wrong  middle  initials.  The  authorities  are  all  agreed 
that  the  law  requires  and  recognizes  but  one  Christian  name, 
and  that  the  omission  or  insertion  of  middle  initials  is  imma- 
terial,' yet  in  many  instances  the  middle  name  is  the  only 
clue  b}"  which  judgment  debtors  can  be  identified.  In  ])oi)u- 
lous  localities  it  is  not  always  expedient  to  show  all  the 
judgments  appearing  against  a  particular  name.  Say  the  per- 
son whose  title  is  under  consideration  is  named  John  R. 
Smith,  and  the  record  discloses  judgments  against  "  John 
Smith,"  and  John  Smith  with  middle  initials  other  than 
"  K,"  now  what  course  must  be  pursued  in  view  of  the 
propositions  last  enumerated  ?  To  insure  absolute  certainty, 
every  judgment  that  comes  with  the  rule  must  be  shown, 
and  this  in  many  cases  would  be  impractical)le.  In  the  ab- 
sence of  positive  instructions,  therefore,  when  questions  of 
doubt  arise,  the  examiner  usually  looks  only  for  judgments 
against  the  particular  name  under  consideration,  and  in  his 
certificate  expressly  states  tluxt  no  search  has  been  made 
for  the  other  names.'  Tlie  same  perplexity  arises  where 
only  initials  are  employed,  an  incorrect  yet  nevertheless 
common  practice.  A  judgment  docketed  against  "  A. 
Jones"  has  been  held  sutlicient  notice  of  a  judgment 
ajrainst  " Abel  Jones,"  where  the  defendant  uniformly 
wrote  his  name  by  his  initials  and  there  was  no  other  "A. 
Jones"  in  the  county.*  Again,  tlu)  examiner,  and  counsel 
as  well,  must  deal  with  the  discordant  docti-ine  <jf  'nhm 
Hoiuma.  Thus,  a  judgment  against  John  "llolth"  was  in 
one  instance  pi-rmittLMl  to  ojici-atc  as  a  lien  on  land  ow  nt'd 

'  Th»)ni|>w)n   v.  Ix<-,   21    111.    2-12;      in  tlic  rlia|)t<T  ilevi.Ud   to  "Opin- 
Bk-trh  I".  Jolinson,  40  111.  110.  i..iis  of  Title" 

»ThijiiJiatt<  riii  further  coiUjidcTcd         'Jijiic-b'  1-jitatf,  27  l*u.  St.  ;J.'»6. 


4S8  ABSTRACTS    OF   TITLE. 

I)y  Jolin  "  Bubb,"  '  and  one  against  Henry  "  Ilackman  " 
was  in  another  case  allowed  to  participate  against  the  ])ro|)- 
ert\'  of  Henry  "  llecknian.  "  '  It  is  said  in  su])port  of  these 
]>recedents  that  identity  of  sound  is  a  surer  designation  of 
the  names  of  persons  than  identity  of  orthogi-ajihy,  and  that 
in  ascertaining  identity  of  sound  the  ])revailiiig  usage  in 
])ronunciation  in  the  locality  will  prevail.  It  is  contended 
that  ])ersons  searching  the  judgment  docket  for  liens  ought 
to  know  the  clilferent  forms  in  which  the  same  name  may 
be  spelled,  and  to  make  their  searches  accordingly;  unless 
indeed  where  a  spelling  is  so  entirely  unusual  that  persons 
can  not  be  expected  to  think  of  it/  It  is,  however,  the 
duty  of  a  judgment  creditor  to  see  that  his  judgment  is 
]n'operly  entered,  and  in  such  a  manner  as  to  furnish  to  the 
eye  of  purchasers  and  subsequent  incumbrancers,  that  record 
notice  which  the  law  contemplates;  therefore,  while  slight 
A-ariations  not  materially  changing  the  sound  may  be  ])crmit- 
ted  to  stand  under  the  rule  of  idem  so)ians,  total  dei)artures 
in  initial  letters,  misleading  the  searcher  and  failing  to 
furnish  him  with  proj)er  clues,  can  not  be  allowed.  As 
where  the  judgment  debtor  is  named  "  Yoest,"  but 
the  judgment  is  docketed  "  Joest,"  notwithstanding  that 
the  foreign  pronunciation  of  the  name  is  the  same  using 
either  initial,  yet  the  eye  is  misled,  and  the  law  does 
not  impose  upon  any  one  who  searches,  the  duty  of  inquir- 
ing whether  some  other  letters  may  not  spell  the  name  of 
the  debtor  in  another  language.* 

§  19.  Operation  and  Effect  of  Probate  Decrees.  A 
decree  of  a  probate  court  acting  within  the  sphere  of  its 
jurisdiction,  is  conclusive  upon  all  those  to  whom  the 
right  of  appeal  is  given,'  when  such  right  is  unexer- 
cised, and  as  to  all  matters  which  appear  from  the  record  to 
have  been  adjudicated  upon;"  and  all  such  decrees  where 

'  Meyer  v.  Fegaly,  39  Pa.  St.  429.  "  Ileil's  Appeal,  40  Pa.  St.  453. 

'  Bergman's  Appeal,  88   Pa.  St.  '  Lawrence  v.    Englesby,  24  Vt. 

123.  42. 

'See  Meyer  v.  Fegaly,  39  Pa.  St.  «Rix  v.  Smith,  8  Vt.  356. 
429. 


JUDGMENTS    AXD   DECREES.  4S9 

the  court  has  jurisdiction  of  tlie  subject-matter,  "will  be  pre- 
sumed to  have  been  made  upon  proper  notice  and  formal 
proceedings,  even  though  such  proceedings  do  not  ap})ear  of 
record.' 

Orders  of  sale  made  by  probate  courts  are  a  class  of  de- 
crees to  which  the  attention  of  the  examiner  is  particularly 
directed.  These  orders  are  essential  parts  of  the  title  and 
call  for  severe  scrutiny.  It  has  been  held  that  an  order  of 
court  for  the  sale  of  land  must  in  itself  be  sulHcient  without 
reference  to  extraneous  matters,  and  where  the  description 
is  insufficient  the  sale  will  be  invalid.' 

§20.  Foreii^u  Judgiiieiits  and  Decrees.  The  courts  of 
a  country  have  no  extra  territorial  jurisdiction,  hence,  they 
can  not,  by  judgment  or  decree,  pass  title  to  land  situated 
in  a  foreign  country.  It  is  true,  that  courts  of  e(|uity  nuiy, 
and  do,  entertain  bills  for  the  specific  performance  of  con- 
tracts respecting  lands  situate  in  a  foreign  country,  if  the 
parties  are  resident  within  the  territorial  jurisdiction  of  the 
court,  Ijut,  in  such  cases,  the  court  can  not  bind  tlie  land 
itself  by  any  decree  it  may  make;  it  can  only  bind  the  con- 
science of  the  l)arty  in  regard  to  the  land,  and  enforce  him, 
by  process  against  his  person,  to  perform  his  agreement. 

'Sparhawkr.    Bucll,  9  Vt.   41;  'Crosby  t\  Dowd.   fit  Cal.    557; 

Pollock  r.  Buie,  4:5  Miss.  140.      But      Hill  v.  Wall,  GO  Cal.  130. 
see  Martin  v.  Williams,   42  Mibs. 
210. 


CnAPTER  XXVII. 


JUDICIAL   AND   EXECUTION  SALES. 


gl. 

Defined  and  distinguished. 

§  13. 

2. 

Execution    sales  —  Validity 
and  effect. 

14. 

3. 

Title  under  execution  sales. 

I.'). 

4. 

When  the  title  vests. 

IG. 

5. 

Tlie  writ. 

17. 

6. 

The  levy. 

18. 

7. 

Notice  of  sale. 

19, 

8. 

Proof  of  jHil)lication. 

9. 

Execution  sales  as  affected  by 

20. 

death. 

21. 

10. 

Exemption. 

22. 

11. 

Judicial  sales — Validity  and 

effect. 

23. 

12. 

Title  under  judicial  sales. 

Rights  of  purchnsprs. 

Compelling  purch;iser  to  ac- 
cept title. 

Order  of  confirmation. 

Elfect  of  confirmation. 

Certificate  of  sale. 

Assignjnent  of  certificate. 

Proof  of  title  under  judicial 
and  execution  sales. 

Continued 

Probate  sales. 

Nature  and  requisites  of  pro- 
bate sales. 

Abstract  of  probate  sales. 


§  1.  Judicial  and  Execution  Sales — Defined  and  Dis- 
tini^uished.  Iso  inconsiderable  portion  of  the  real  estate 
of  the  country  changes  hands  every  year  through  the  media 
of  execution  and  judicial  sales,  meaning  by  such,  all  sales 
and  transfers  of  property  made  in  pursuance  of  the  orders, 
judgments  or  decrees  of  courts,  or  sales  made  to  obtain  satis- 
faction of  such  orders,  judgments  or  decrees.  The  term 
"  judicial  sale  "  is  properly  applied  only  to  those  sales  made 
in  conformity  to  an  order  or  decree  directing  same,  and  re- 
quiring a  subsequent  confirmation  or  a}iproval  by  the  court.' 
"  Execution  sales,"  though  based  upon  a  judgment,  are  made 


'  Mr.  Freeman  cla.sses  judicial 
sales  as:  (1)  those  made  in  chan- 
cery; (2)  those  made  by  executors, 
administrators  and  guardians, when 
acting  by  virtue  of  authority  derived 
from  orders  of  sale  obtained  in  judi- 


cial proceedings;  and  (3)  all  other 
cases  where  property  is  sold  under 
an  order  or  decree  of  court  desig- 
nating such  property,  and  author, 
izing  its  sale:  Freeman  Void  Jud. 
Sales,  15. 


(490) 


JUDICIAL    ANT)    EXECUTION    SALES.  491 

under  the  statute,  for  the  recovery  of  a  specific  sum  in  satis- 
faction of  the  judgment.  "  The  chief  differences  between 
execution  and  judicial  sales,"  says  Freeman,  "  are  these :  tlie 
former  are  based  on  a  general  judgment  for  so  much  money, 
the  latter  on  an  order  to  sell  s]iecific  property;  the  former 
are  conducted  by  an  officer  of  the  law  in  pui-suance  of  the 
directions  of  a  statute;  the  latter  are  made  by  the  agent  of 
a  court  in  pursuance  of  the  directions  of  the  court;  in  the  for- 
mer the  sheriff  is  the  vendor,  in  the  latter,  the  court;  in  the 
former  the  sale  is  usually  complete  when  the  property  is 
struck  off  to  the  highest  bidder;  in  the  latter  it  must  be  re- 
ported to  and  approved  by  the  court." '  Sales  made  under 
an  execution  must  conform,  in  all  respects,  with  the  rules 
which  the  law  lays  down  for  the  protection  of  the  debtor. 
If  not  so  made,  they  may  be  held  irregular  and  void.  But 
sales  made  under  the  decree  of  a  court  are,  to  a  considerable 
extent,  under  the  discretionary  control  of  the  court,  whicli 
often  sets  them  aside,  although  no  error  or  irreguhirity  has 
been  committed,  merely  for  the  sake  of  an  advance  in  the 
price;  or  which  may,  if  satisfied  that  no  injustice  has  hcvn 
done,  disregard  irregularities  in  the  conduct  of  the  Side,  and 
confirm  the  action  of  the  master  or  other  officer  making 
same.'  An  erroneous  or  voidalde  judgment  or  decree  stands 
good  until  reversed;  and  a  stranger  who  ])urchases  ])roi)erty 
sold  under  such  judgment  or  decree  will  be  protected  in  his 
]iurcliase.* 

^  2.  Execution  Sales— Validity  and  Eflect.  it  is  a  fa- 
miliar princi])le  that  statutory  proceedings  to  divest  title  to 
real  estate  must  be  strictly  ]nirsued;  and  a  subst.-intial  de- 
parture from  the  retjuirements  of  the  statute  renders  the  \U'i>- 
ceedings  void.*  The  rule,  tliat  tlie  slieriff  is  presumed  to  have 
done  his  duty  in  making  a  sale,  does  not  ap[»]y  whcic  \hv  f:ut 

'  Freoman  on  Voi<l  Jud.  Salfs.  14.  Smith,   43   Miks.    407;    (JiiiTftt    r. 

*LaHclly.  PowelI,7Col(Jw.(TiMn.)  Lynch,   45    AIii.    201;    Siiim-tt    v. 

277.  CralU'.  4  W.  Va.  mi 

•Srrtith    Fork   Canal    Co.  r.  Cor-  ♦Stillwi-Il  r.  Swarthaut,  SI  N.  Y, 

don.  2  AM).  (U.  H.)  479;  M<-AuHlaiid  1<«»;  Ilav.im  v.  Sli.rinaii.  J'.'  H.irl.. 

V.    Pundt,    1    Nib.    211;  Htr)nn    v.  (j;}0;  «uigl  t?.Cohii<r,2:.' 1-a.  Ann.  20. 


402  ABSTRACTS    OF    TITLE. 

that  the  sale  was  in  violation  of  the  statute,  is  apparent  on 
the  face  of  the  record  througii  ■which  the  title  is  clainieil,' 
though  the  validity  of  a  ])urchaser's  title  will  not  l)e  affected 
l)y  the  failure  of  the  ollicer  to  make  a  seizure  in  the  mode,  or 
by  the  steps,  prescribed  by  the  statute,  when  such  faihire 
consists  of  mere  irreg'uLarities; '  his  power  to  sell  comes  from 
the  judgment  and  execution,  and  is  not  to  bo  measured  by 
liis  proceedings  under  the  writ."  Greater  strictness  is  re- 
quired in  conducting  the  sale,  the  details  of  which  are  regu- 
lated by  express  provisions  in  all  the  States,  and  non-com- 
pliance in  this  particular,  as  by  offering  land  in  gross  in- 
stead of  in  parcels,  etc.,  will  be  sufficient  to  vitiate  same,  and 
the  sale  may  be  set  aside,  even  as  against  a  stranger  who  has 
bought  the  property  and  paid  the  price.* 

One  who  bu3's  at  execution  sale  is  not  an  innocent  pur- 
chaser in  the  full  meaning  of  the  term,  but  takes  the  estate 
subject  to  all  equities  existing  against  it  at  the  time  of  the 
purchase,  and  is  chargeable  Avith  notice  of  all  defects  in  the 
execution  del)tor's  title,  together  with  the  value  of  the  prop- 
erty and  of  its  situation,  and  of  the  legal  rules  bearing 
upon  the  transaction.'  Where,  however,  a  purchaser  looks 
to  the  record  and  finds  there  a  valid  subsisting  judg- 
ment, and  buys  in  good  faith,  pays  the  price  and  receives 
a  deed,  he  takes  a  title  which  is  valid  until  the  sale  is  set 
aside  and  the  purchase  money  refunded."  The  doctrine 
of  caveat  emptor  applies  to  every  purchaser  at  a  sheriff's 
sale.  lie  buys  at  his  peril,  and  succeeds  only  to  the  right 
and  title  which  the  defendant  in  execution  had  at  the 
time  the  judgment  was  rendered  against  him.'     The  sell- 

'  Piel  V.  Braver,  30  Ind.  332.  278;  Allen  v.  McGaughoy,  31  Ark. 

'  Wood  V.   Morehouse,    1   Lans.  252;  Morris  v.  Robey,  73  111.  432. 
(N.  Y.)  405;  Stewart  v.   Pettigi-ew,  «  Owen  v.  Navasota,  44  Tex.  517; 

28  Ark.  372;  Curd  v.  Lackland,  49  Winp^  v.  Dodge,  80  111.  564. 
Mo.  451.  miller  r.    Wilson,  32  Md.    297; 

3  Blood  V.  Light,  38  Cal.  G49.  Walke  v.   Moody,   65  N.   C.    599; 

*Vass  V.  Johnson,  41  Ind.  19;  Frost  r.  Bank,  70  N.  Y.  553;  Bar- 
Browne  V.  Ferrea,  51  Cal.  552;  Mor-  ron  v.  MuUin,  21  Minn.  374;  Hohnes 
ris  V.  Robey,  73  111.  462.  Compare  v.  Shaver,  78  111.  578;  McCartney 
Eaton  V.  Ryan.  5  Neb.  47.  v.  Kmg,  25  Ala.  681. 

*  Richai-dson  v.  Wicker,  74  N.  C. 


JUDICIAL    AND    EXECUTION    SALES.  493 

ing  officer  has  no  power  to  warrant  the  title  and  the  pur- 
chaser is  presumed  to  have  examined  same  and  to  know 
what  he  is  acquiring.'  The  judgment  is,  of  course,  the 
foundation  for  the  title,  and  the  purchaser  must  see  to 
it  that  at  tlie  time  of  the  sale  such  judgment  is  subsisting 
and  unsatisfied,  for,  however  innocent  he  may  be,  he  can 
acquire  no  title  when  the  power  which  confers  the  same 
has  ceased  to  exist." 

§  3.  Title  under  Execution  Sale.  A  purchaser  at  an 
execution  sale  succeeds  to  all  the  rights  which  the  judgment 
debtor  had,'  and  takes  the  same  title  possessed  l)v  him  witli 
all  its  imperfections  and  infirmities.*  It  is  the  policy  of  the 
law,  however,  to  uphold  and  protect  such  titles,  and  though 
the  deed  purports  to  convey  only  "the  right,  title  and 
interest  "  which  the  judgment  debtor  possessed  or  had  in  the 
land  at  date  of  the  judgment,  3'et  the  purchaser  under  such 
a  deed  will  take  the  entire  title  as  against  ]irior  unrccordcil 
deeds  or  equities  of  which  he  had  no  notice.'  The  title  so 
acquired  may  be  sold  and  conveyed,  even  ])ending  an  ;i|»- 
peal,'  and  the  reversal  of  the  judgment  for  error  where 
the  court  had  jurisdiction  of  the  subject-matter  and  the 
parties,'  will  not  materially  affect  same,  for  it  is  a  s(.^ttle(l 
princi])le  of  the  common  law  coeval  with  its  existence,  that 
the  defendant  shall  have  restitution  of  the  purchase  money, 
and  the   purchaser  shall  hold    the    })roi)erty   sold,   excei)t 

'Atwood  t\  Writ;lit.  29   Ala.  340;  irri'f^ilar.  Imt  not  void,  ami  a  sale 

Bas-sett    V.    I^jckard,   (id    III.    IGl;  of  land  iimkT  such  an  I'.xrcution  is 

Ik-nsley  v.  Baker,  10  Mo.  107.  sul)j('(t  to  Ix-  set  aside,  on  motion 

'  Wood  r.  Calvin,  2  Hill  (N.  Y.).  niadein  iirojter  time  Ity  tiie  ilefend- 

560;  Ja^;kson  u.  Anderson,  4  Wend.  ant,     \vho.se  land  has    heen  sold; 

(N.  Y.)  474;   Kin^  v.  Goodwin,  10  but  no  one  except  the  defendant 

Ma.ss.  03.  in    the  execution  can  (piestion   the 

'Morgan   v.   B*>use,   ."ilJ  Mo.    210;  sale  for  irn-j^ularity,  however  gross, 

Williams  v.  Amory,  10  Mitss.  IHO.  and  if  not  so  set  iwide,  the  sali-  will 

*  Hicks  V.   Skinner,   71  N.  C.  ^t'.i'J;  pass  the  defendant's  interest  in  the 

Cameron   v.    Ix)gan,   H   l<jwa,  -HM;  land:    Shirk   r.   IJravel   Huad   Co., 

BiiKW'tt  V.  Ixjckard,  (V)  III.  lOf.  1 10  111.  001. 

»  Harpham  r.  Little.  MJ  III.  WO.  '  Kea«t«'r  r.    rieminK.   Ml  111.  4r.7; 

*The  issu*.' of  an  execution  on  a  Hol>S4»n  r.  Ewun,  02  III.  110. 
judgment,  jx-nding  an   appeal,    is 


491  ABSTRACTS    OF    TITLE. 

where  tlie  ])l;iintifT  in  the  jiul<^niient  becomes  purchaser,  ami 
still  hokls  the  title.'  In  this  hitter  event  the  title  acquired 
under  such  judgment  is  divested  by  the  reversal' 

§  4.  ^Vheii  tlie  Title  Tests.  In  all  cases  where  a  re- 
demption is  permitted,  the  legal  estate  of  the  jmlgment 
debtor  is  not  divested  by  the  sale  until  after  the  period 
allowed  for  redemption,  nor  even  then,  unless  the  sale  has 
been  consummated  b}"  a  deed  from  the  sheriff.  Until  the 
execution  of  such  deed  the  title  of  the  purchaser  is  inchoate, 
for  by  the  sim]ile  act  of  purchase  he  acquires  no  legal  estate 
in  the  land,  but  only  a  right  to  an  estate  which  may  be 
perfected  by  conveyance.'  Prior  to  the  sheriff's  deed,  the 
debtor  is  entitled  to  the  possession  and  profits  of  the  land, 
while  the  equity  held  by  the  purchaser  is  a  lien  ui)on  the 
land  for  the  amount  of  his  bid  and  interest.* 

§  5.  The  Writ.  It  is  a  familiar  principle  that  the  exe- 
cution must  conform  substantially  to  the  judgment,  or  the 
sale  will  be  void  ;'  yet  it  is  not  customary  to  more  than 
allude  to  this  instrument  in  the  abstract  of  an  execution 
sale,  unless  special  instructions  are  given  otherwise.  Its 
date,  number  and  import  are  usually  noticed,  and  in  case  of 
a  venditioni  exponas  a  brief  allusion  to  lands  specifically  de- 
scribed. Nor  does  a  more  extended  notice  ordinarily  seem 
necessary,  as  the  purport  and  effect  of  the  writ  are  generally 
recited  in  other  of  the  proceedings  under  it.  Where  there 
is  an  insufficient  teste,  as  where  the  seal  of  the  court  is 
omitted,"  or  where  there  is  a  want  of  correspondence  with 
the  judgment,  such  defects  should  be  shown,  as  a  valid  exe- 

'  Fergus  v.   Woodworth,   44  111.  and  see  Rucker  v.   Decker,  49  111. 

374;  Mansfield  v.  Hoagland,  46  111.  377. 

359.    In  this  event  the  sale  is  usually  ■*  Vaughn  v.  Ely,  4  Barb.  159. 

void    under    special    statutes:  see  '  Crittenden  u.  Leitensdorfer,  35 

Hutchens  v.  Doe,  3  Ind.  528;  but  Mo.  239;  Hightower  v.  Handlin,  27 

compare  Gossom  r.  Donaldson,  18  Ark.  20;  Hastings  r.  Johnson,!  Nev. 

B.  Mon.  (Ky.)  230.  612. 

2  Powell  V.  Rogers,  105  Bl.  318.  « This  has  been  held  a  fatal  defect 

*  Smith  u.  Colvin,    17  Barb.  157;  which  will  invalidate  the  deed:  Ins. 

Evertson  v.  Sa^vye^,  2  Wend.  507;  Co.  v.  Hallock,  6  Wall.  556;  Davis 

Bowman  v.  The  People,  82  111.  246;  v.  Ransom,  26  111.  100. 


JUDICIAL   AND    EXECUTION    SALES.  495 

cution  is  one  of  the  integral  links  to  support  the  title,  but 
mere  clerical  variance  will  not  invalidate,'  nor  atl'onl  ground 
for  collateral  impeachment.'  An  execution  issued  and  lev- 
ied in  the  name  of  deceased  plaintiffs,  or  against  deceased 
defendants,  will  be  void  in  some  States,  but  may  be  effectual 
in  others,  pro\ided  certain  statutory  provisions  are  complied 
with.' 

§  t).  The  Levy.  A  lev}'  of  lands  is  made  by  an  indorse- 
ment thereof  upon  the  writ,*  there  being  no  such  thing  as 
seizure  of  the  premises.  The  sheriff,  when  levying  on  real 
estate,  does  not  disturb  the  possession  of  the  debtor  or  even 
his  right  of  possession,  and  this  constitutes  the  chief  distinc- 
tion between  a  levy  on  real  estate  and  on  personal  proj^erty.' 
The  decisions  as  to  what  constitutes  a  good  levy  are  numerous, 
and  generallv  harmonious  in  declaring  that  the  land  must 
be  described  with  sufficient  certainty  to  enal)le  it  to  be  iden- 
tified without  other  evidence,"  but  if  defective  in  this  re- 
spect it  will  be  cured  by  a  correct  deed.'  In  an  abstract  of  the 
sale,  it  is  regarded  as  a  minor  detail  wliich  may  be  briefly 
noticed  in  the  return  of  the  execution,  but  the  certificate  and 
deed  suj^ply  in  better  shape  the  necessar}'  information  concern- 
ing same.  "  And,"  observes  Mr.  Ilorer,' "  though  the  purchaser 
relies  on  the  judgment,  execution,  the  levy  and  the  deed, 
yet  when  the  purchaser  at  sheriff's  sale  shows  an  authorized 
execution  and  deed,  a  correct  levy  and  notice  is  ]n*esum(^d. 
A  judgment,  execution  and  deed  from  the  sheriff  are  suffi- 
cient  to   supj)ort   the   title   of  a  ])urcluiser  without  jiroof 

'Wlieaton  v.   S«'xton,  4  Wlu-at.  •  Cha<U)ounio  r.    Ma.son,  48    Me. 

rm-,  J ackmrn  V.  S|.ink,  r,9  111.  4(M;  889;  Gault  «.  Wocdbridge,  4   Mc- 

Riddle  v.  Bush,  27  Ttx.  GTS;  Wood-  Lian.  829. 

ley  V.  Gilliam,  07  N.  C.  2:57.  ^  Hoppinj?  v.  Hurnarn,  2  Gnn-no 

*  Butler  V.  Hayrn-s.  3  N.  II.  21,  (la.),  89. 

Uiildreth  r.  TliompKoii.  lOMa.'W.  "  K<.n'r  Jud.   and  Ex.  Salo8,  292, 

191;  Meek  r.  Buiik.T,  :«  Iowa,  109;  ritin^  Brooks  f.  liooiu-y,  11  (in.  428; 

Bowen  v.  Ikniner,  4.'5  MiwH.  10.  Hopping'  v.  Burnani.  2  (Jreene.  89; 

*lit>ri-rJw\.  and  Ex.  fviles,  280,  Evans  ?•.  DavJH.  8  B.  Mnn.  814;  M<-- 

imd  raws  fit4'd.  Entire  r.  Durliatn,  7   Ired.  L.    l.'d; 

'  iJcinent   V.    Tlionii>»on,    14    Ito-  Jackson    ?•.    YimnK.    5    Cow.  209; 

porter,  145.  I'liiliiiw  v.  Collee,  17  111.  154. 


4'JO  AnSTKACTS    OF   TITLE. 

of  a  li'vv,  tlioiii^h  tlie  return  be  incorrect,  or  there  be   no 
return/"  ' 

§  7.  Notice  of  Sale.  It  is  a  general  statutory  provision 
that  no  real  estate  shall  be  sold  by  virtue  of  any  execution 
except  at  ]uiblic  sale,  nor  unless  the  time  and  place  of  hold- 
ing such  sale  shall  have  been  previously  given  in  prescribed 
methods.  These  methods  generally  consist  in  putting  up 
written  or  printed  notices  and  by  advertisement  of  same  in 
some  newspaper,  which  notices  must  descrilie  the  parties, 
property,  terms,  etc.,  and  this  applies  as  well  to  judicial  as 
to  execution  sales.'  This  notice  it  is  well  to  briefly  abstract, 
showing  only  the  legal  requirements  in  a  connected  nar- 
rative form,  and  when  proof  of  pu])lication  is  appended, 
show  this  as  well.  The  proof  of  publication  is  alforded  l)y 
the  publisher's  affidavit  or  certificate  of  same.  The  statutes 
recpiiring  notice  of  sale  are  said  to  be  directory  merely,  and 
failure  to  give  such  notice  will  not  avoid  the  sale  so  as  to 
defeat  the  title  of  an  innocent  purchaser  not  himself  in 
fault;'  hence,  a  passing  allusion  sufficient  to  show  its  pur- 
port, seems  all  that  is  necessary  in  regard  to  the  notice.' 
In  the  general  synopsis  of  sale  it  may  be  mentioned  in  this 
manner: 

Printed  copy  of  notice  of  sale,  gives  title  of  court  artd 
cause,  describes  the  said  premises,"  and  fixes  on  Sejjt.  7,  ISSl," 

'  Lf!vy  on  attachment  is  governed  good  faith  can  not  be  affected  by 

by  different  principles,  and  a  return  such    non-comphance    with     the 

or  certificate  filed  is  of  vital  impor-  statute:  Osgood  v.   Blackmore,   59 

tance  in  preserving  the  lien:    See  111.    261;  Watt  v.   McGalliard,   67 

Lis  Pendens  and  Attachments.  111.  513. 

"^  Olcott  I'.  Robinson,  20  Barb.  148.  ^  A  minute    description    is  not 

•  Freem.  Ex.  §  284.  With  re-  necessary  provided  what  is  given 
gard  to  probate  sales  a  more  strict  is  correct  and  sufficiently  identi- 
rule  seems  to  prevail  and  notice  is  fies  the  property  to  enable  the  pub- 
held  essential:  Blodgett  v.  Hitt,  29  lie  to  understand,  by  the  exercise  of 
Wis.  169;  Mountour  v.  Purdy,  11  ordinarj*  intelligence,  wliat  is  to  be 
Minn.  384.  sold:    Stevens  v.  Bond,  44  Md.  506; 

■*  Defective  notice  does  not  ren-  Collier  v.  Vason,  12  Ga.  440;  Allen 

der  the  sale  A'oid,  or  even  voidable  v.  Cole,  9  N.  J.  Eq.  286. 

unless  the  purchaser  has  notice  of  *  The  date  of  sale  is  material  and 

the     irregularity.     Purchasers    in  destroys  the  validity  of  the  notice 


JUDICIAL    AND    EXECUTION    SALES. 


4'.i7 


at  11  o'clock  a.  7/2.,'  at  the  east  door  of  the  Court  IIousc^  Chi- 
cago^ lll.^  and  for  caah^  as  the  tiyne,  place  and  tenns  of  said 
sale. 

§  8.  Proof  of  Publication.  Appended  to  the  notice  of 
sale  will  usually  be  found  an  atliilavit  or  certiticate  by  the 
publisher  of  a  newspaper,  to  the  effect  that  the  notice  was 
duly  pul>lished  according  to  law,  and  this  aifidavit  or  certifi- 
cate it  is  well  to  show  in  brief  terms.  The  abstract  fol- 
lows the  original,  and  its  material  points  may  be  noted  as 
follows : 

Appended  to  the  foregoing  is, 


Affidavit 

Mxjra  Brad  well.   Presi- 
dent of  the  Chicago 
Legal  News  Co. 


Suhscriled  and  sicorn  to,  June 
1,  ISS.J. 

Recites^  that  a  notice,  "  of  which 
the  annexed  printed  f<lip  is  a  true 
cop>y,^^  was  duly  p^Mished  in  the 
Chicago  Legal  Neios,  a  wcel'hj 
newspaper  of  general  circvlation,  printed  and  2)nhlished  in 
Cook  County,  III.,  for  the  period  of  three  successive  weeks ;^ 
that  the  date  of  the  frst  pvhlication  wa.i  Jan.  6,  1SS3',*  that 
the  date  of  the  last  piddication  was  Jan.  '20,  ISSS. 

A  certificate  of  publication  under  the  statute  is  suflicient 


if  of  such  a  character  as  to  niLsload 
the  public:  Fenner  v.  Tucker,  G 
R.  I.  531. 

'  If  the  notice  does  not  name  the 
exact  hour  at  whicli  the  sale  ia  to 
be  held,  it  should  name  the  hours 
between  which  it  will  take  place, 
which  will  be  sufficient  if  the 
hours  named  belong  to  the  busi- 
nesH  hours  of  the  day:  Cox  v. 
HalKted,  2  N.  J.  E-j.  :}11;  Burr  v. 
Ii<jrdfn.«l  III.  3KS.  A  failure  to 
state  wnne  time  renders  th<'  notice 
inHunicient:  Trustees  v.  Snell,  19 
III.  IM. 

'  The  desiKTiation  of  a  place  of 
sale  is  an  ••sHcntial  ri'iiuisit*'  of  the 
32 


notice,  without  which  it  is  in  law 
no  notice  whatever:  Bottineau  r. 
Ins.  Co.,  31  Miiui.  ViTy.  Hl<.dK«'tt  v. 
Hitt.  29  Wis.  lt;i). 

^  The  number  of  times  or  jieriod 
of  time  which  the  notice  was  ]tub- 
lished,  and  the  date  of  the  first  and 
last  issues  containinj?  same,  ar<« 
indispensable  to  its  validity:  bt-y- 
Keh  V.  ChicaRo,  65  111.  \m. 

*  It  may  be  well  to  olwerve  that 
the  date  of  ]iubli(-ation  does  not 
fall  on  Siinday  as  this  would  in- 
valitlatethe  notice:  Smith  »'.  Wil- 
cox, 24  N.  Y.  \V}',V,  KeammoM  v. 
(•hi(a>r<..  10  HI.  UiV,  Shaw  r.  Will- 
iaiiiH  (Suj).  ft.  Ind.  IWU). 


49S  ABSTRACTS    OF    TITLE. 

which  shows  a  substantial  coinpliancc  therewith,  l)ut  the 
essential  requisites  must  appear;  such  affidavit  or  certificate 
may  properly  be  likened  to  the  return  of  an  olficer,  and  like 
such  return  should  show  all  jurisdictional  facts. 

A  defect  in  the  certificate  of  publication,  in  not  stating  the 
first  and  last  days  of  the  publication,  has  been  held  to  be 
cured  by  a  recital  in  the  decree  that  "  it  appearing  to  the 
court  that  notice  according  to  law  was  given,"  etc.,  the  pre- 
sumption being  that  the  court  received  other  evidence  than 
tlie  certificate,  of  the  date  of  the  publication.'  It  must  be 
observed  further,  that  the  certificate  or  atlidavit  of  pu])lica- 
tion  can  only  be  made  by  the  publisher  or  his  authorized 
agent,"  and  a  certificate  signed  "  John  Went  worth,  publisher, 
by  Reed,"  has  been  held  insufficient."  In  this  instance  the 
certificate  did  not  purport  to  be  given  by  the  publisher,  but 
by  another  person  who  used  his  name  but  failed  to  show 
his  authority.  Where  a  newspaper  is  published  by  a  firm 
or  b}'  a  corporation,  a  certificate  by  one  of  the  partners,  or 
by  an  officer  of  the  corporation,  when  such  certificate  shows 
the  official  connection  of  the  person  making  it  with  the 
newspaper,  will  usually  be  sufficient,'  wliile,  as  a  funda- 
mental princi])le,  an  aftidavit  can  not  be  made  by  proxy. 

§  9.  Execution  Sale  as  Affected  by  Death.  The  death 
of  a  plaintiff  after  judgment  and  before  execution  issued  is 
of  com])aratively  little  moment  in  respect  to  title,  as  his 
personal  representatives  may  sue  out  execution  in  the  name 
of  such  deceased  plaintiff,  or  in  their  official  capacity,  as 
the  statute  may  direct."    If  the  defendant  dies  after  judg- 

'  Moore  v.  Neil,  39  III.  256.     Tlie  ^  Fox  v.  Turtle,  55  III.  377. 

foregoing    example,    though     in-  ""Fox  v.   Turtle,  55  111.    377.     It 

serted  in  connection  with  execution  would  seem  to  be  the  rule  in  some 

sales,  is  that  also  emploj^ed  in  al  States,  that  when  the  affidavit  of 

decretal  sales  as  well,    either    in  publication  is  defective,  an  amended 

chanceiy  or  in  probate,  and  must  affidavit  may  be  filed    according 

be  shown  in  the  same  manner  in  to  the  truth  of  the  case  :  Bunce  v. 

expositions  of  such  sales.  Reed,  16  Barb.  347. 

■'  This  matter  is  statutory :  usually  '  I*  >s  a  familiar  provision  of  the 

the  proof  of  publication   must  be  statute  that  liens  created  by  law  do 

made  by  the  "  printer  or  publisher."  not  abate  by  reason  of  the  death  of 


JUDICIAL    AXD    EXECUTION    SALES.  499 

ment,  the  plaintiff  may  sue  out  execution  in  the  mode  pre- 
scribed by  statute,  or,  if  permissible,  proceed  by  the  common 
law  scire  facias.  But  in  the  event  of  the  death  of  either  part}' 
prior  to  execution  to  render  valid  a  sale  under  the  judgment, 
the  same  must  be  revived  by  scire  facias,  or  an  execution 
must  be  sued  out  in  the  mode  prescribed  b}''  statute,  wliicli 
usually  provides  for  the  filing  or  recording,  in  the  court  in 
which  the  judgment  exists,  of  the  letters  testamentary  or  of 
administration,  after  which  execution  may  issue  and  pro- 
ceedings be  had  thereon,  in  the  name  of  the  executor  or 
administrator  as  sncli.' 

§  10.  Exemptions.  Though  all  the  real  estate  of  a 
judgment  debtor  may  be  primarily  liable  to  seizure  and  sale 
on  execution,  a  statutory  right  has  been  given  to  him  in 
every  State,  to  relieve  a  portion  of  same  from  this  burden, 
but  the  exercise  of  this  right  is  largely  dependent  on  inten- 
tion. When,  therefore,  title  is  claimed,  or  sought  to  be 
adduced  through  the  medium  of  an  execution  sale,  and  the 
abstract  furnishes  no  information,  an  inquiry  should  always 
be  made  concerning  the  status  of  the  land  with  reference  to 
the  statutory  right  of  exemption.  The  debtor  is  not  always 
obliged  to  assert  his  right  at  the  time  of  the  levy,  neither 
will  a  subsequent  sale  impair  same,  and  the  question,  when 
such  a  state  of  facts  may  exist  under  the  statute,  becomes 
of  controlling  importance.  A  sale  of  the  homestead  under 
execution  being  inoperative,  the  purchaser  thereat  takes 
no  title.* 

any  plaintiff  or  plaintifTs,  hut  that  aftor  tlio  (l(\Tth   of  the  jml^rincnt 

same  sliall  survive  in  favor  of  tlie  cie<litor,  witlinut  first  rt-viviii^  tin* 

exifrutor   or   administrator,  whose  judj^iin-iit  in  favor  of  the  ])(rs<inal 

duty  it  shallJx- to   have   the  judf^-  repn'Hciitative,     or     recordiuK     in 

nient  enforcwl:  Durham  v.  Heaton,  court  his  Icttt-rs  of  administration. 

28  III.  264.  and  was  also  issued  in  the  name  of 

'  Snammon  t*.  Swartwout,  85  III.  tljcderejise*!  plaintiff,  and  not  in  the 

326;  Brown  v.  Parker,  15  III.  3<j7.  name  of   his  jM-rsonal  n-pn-smta- 

In  this  ca«<»  a  Bherifrs  dej^l  was  re-  tivc    //<•/'/,  that  tin*  rxi'cution,  and 

li*-*!   on    for   title.     Tlie   exi-i-ution  all  proe»'<'dinpi  undi-r  it,  wrri- al>Ho- 

undcr   whifh    the  Bale  was   mad<!  Iut«'ly  voiil. 
woH  nut  iMHUed  until  several  wun  'C'onklin  v.  Foster,  57  III.  101. 


500  ABSTKACTS    OF    TITLE. 

§  11.  Judicial  Sales— Validity  and  Effect.  A  sale  of 
land  iindor  a  jiuli^-mcnt  or  decroe,  must  be  inad(3  in  the  manner 
and  on  the  terms  ])rescribed  in  such  judgment  or  decree;' 
and  the  confirmation  by  the  court,  of  the  report  of  the  ollicer, 
can  not,  it  seems,  cure  the  invalidit}'  of  sale  not  so  made."  But 
a  sale  will  not  be  disturbed  uidess  the  party  suing  can  show 
an  injur}^  resulting  to  him  from  the  sak>.,'  as  well  as  an  in- 
terest in  the  subject-matter,*  while  it  is  always  the  ])olicy 
of  the  law  to  uphold  judicial  sales,  and  to  protect  the  rights 
of  purchasers  under  them; '  and  although  the  judgment  or 
decree  may  be  reversed,  yet  all  I'ights  acquired  at  a  judicial 
sale  while  the  decree  or  judgment  was  in  force,  and  Avhicli 
it  authorized,  will  be  protected.  It  is  sufficient  for  the  buyer 
to  knoAA'  that  the  court  had  jurisdiction  and  exercised  it,  and 
that  the  order  on  the  faith  of  which  he  purchased  was  made, 
and  authorized  the  sale,'  for  where  the  court  has  jurisdic- 
tion of  the  parties,  and  of  the  subject-matter  of  the  litiga- 
tion, no  matter  how  erroneously  it  may  thereafter  proceed, 
within  the  bounds  of  its  jurisdiction,  its  decree  will  be  con- 
clusive until  reversed  or  annulled  in  some  direct  proceeding, 
and  the  title  to  property  acquired  at  a  sale  under  such  de- 
cree, by  a  stranger  to  the  record,  will  be  upheld,  although 
the  decree  itself  may  afterward  be  reversed  for  manifest 
error.^ 

§  12.  Title  under  Judicial  Sale.  The  title  acquired 
under  a  sale  by  order  of  the  court  differs  in  no  material  re- 

'  Langsdale  v.  Mills,  32  Ind.  380.  judgment  or  order  of  sale,  are  in- 

*  Bethel  v.  Bethel,  6  Bush  (Ky.),  valid  from  some  vice  in  the  subse- 

65;  but  this  will  only  apply  to  gross  quent  proceedings:  Freeman  Void 

departures;  mere  irregularity  is  gen-  Jud.  Sales,  15. 

orally  cured  bj' confirmation:  Will-         -Matter  of  Gilmer,  21  La.  Ann 

iamson  i:  Berry,  8  How.  540;  Koch-  589. 

ler  V.  BaU,  2  Kan.  160.    Void  sales,         *  Nixon  v.  Cobleigh,  52  111.  387. 

whether  execution  or  judicial,  are         'Dorsey  v.  Kendall,  8  Bush  (Ky. 

classed  by  Mr.  Freeman,  as  (1)  those  294;  AUman  v.  Taylor,  lUl  111.  185. 

which  are  void  because  the  court         *  Gray  v.   Brignardello,  1  Wall. 

had  no  authority  to  enter  the  judg-  627;  Fergus  v.  Woodworth,  44  111. 

mont  or  order  of  sale;    (2)  those  374. 

which,   though  based  on  a  valid         ''Allmanr.  Taylor,  101  111.  185. 


JUDICIAL    AND    EXECUTION    SALES.  i><>l 

spect  from  that  where  the  sheriff  is  the  vendor.  The  pur- 
chaser is  entitled  to  the  interest  of  all  the  parties  to  the  suit, 
and  to  the  interest  of  those  who  have  purchased  pendente 
lite  from  any  of  the  parties.'  lie  acquires  no  new  rights, 
nor  does  the  fact  that  the  court  is  regarded  as  the  vendor  * 
confer  upon  him  any  superior  equities.  An  equity  court 
does  not  insure  the  title  to  real  ])roiierty  sold  under  its  de- 
crees,' and  the  purchaser  buys,  presmuably,  with  full  knowl- 
edge of  all  defects  and  pre-existent  liens;*  he  is  bound  to 
examine  the  title  or  purchase  at  his  peril,  and  if  he  buys 
without  an  examination  and  obtains  no  title,  he  must,  as  a 
general  rule,  suffer  the  loss  arising  from  his  neglect,  unless 
fraud  or  mistake  has  entered  into  the  transaction.'  Prior 
to  confirmation  he  has  no  iude))endent  rights,  but  is  re- 
garded as  a  mere  proposer;'  after  confirmation  his  rights 
l)ecome  vested,  and  the  sale  will  not  be  set  aside  except  for 
fraud,  mistake,  surprise,  or  otlier  cause  for  which  equity 
Avould  give  relief  if  the  sale  had  been  made  by  the  parties  in 
interest  instead  of  by  the  court.'  Neither  will  the  title  of  an 
innocent  purchaser,  a  stranger  to  the  recoi'd,  be  affected  by 
the  subsequent  reversal  of  the  decree  for  irregularity;*  but 
where  the  purchaser  was  an  original  plaintiff  in  the  suit, 
or  an  assignee  of  the  judgment  or  decree,  he  acquires  only  a 
defeasible  title,  which  may  be  defeated  by  a  subsequent  re- 
versal, and  the  same  rule  obtains  whether  the  rcA'ersal  is 
based  on  an  amendable  detect  or  one  that  is  incurable.' 

'  llaiTjman  r.  Starr.  50  :Mil.  03.  32  Ark.  97:  Capfliart r.  Dowory.  10 

'  In  all  sak-s  made  under  the  an-  W.  Va.  V.M);   Watson  v.   Hoy,   28 

tliority  of  a  decree  in  itjuity.  the  Gratt.  (Va.)  008. 

court  is  tlie  vendor,  and  the  coin-  'TilK-y  r,  Hriil^es,  lOr*  III.  330. 

mi.s.sioner  making  the  sale   is  the  'State  v.  lioanuake  Nuv.  Co.,  80 

mere  agent  of  the  court.     The  de-  N.  C.  408. 

cree  is  the  warrant  of  authority  to  '  Berlin  r,  Melliorn,  7.")  Va.  031>. 

Bell:  Parrat  v.  NeliKh,  7   Neh.  ^tMh  "Sutton  r.  Schonwald,  80  N.  <;. 

Thomrwonv.  Craighe.-id,  32  Ark.  2«1.  19M. 

'(iunU»n  V.   ZiintzinKer,   3  Mac-  'McDonald  r.   Life  Inn.  Co.,  05 

Arthur  (D.  C),  202.  Ala.  3r)S;  Fibhhack  r.  Weaver,  34 

♦Housley  V.   LindHay,   10  Ileisk.  Ark.  5GU. 
(Tenn.j  051;  (iuyim  v.  McCauley, 


502  •  ABSTIiACTS    OF    TITLE. 

§  13.  Kii^lits  of  Purcliasor.  A  purchaser  at  a  judicial 
sale  has  a  rig-ht  to  presume  that  it  is  conducted  according  to 
the  provisions  of  law/  and  proceedings  in  court,  in  a  mat- 
ter in  which  it  has  jurisdiction,  will  be  presumed  to  be  regu- 
lar; and  a  purchaser,  at  a  sale  made  b}'  order  of  such  court, 
is  not  bound  to  look  further  back  than  the  judgment  or  de- 
cree, and  the  legal  effect  it  may  have  on  the  title  which  is 
the  subject  of  inquiry.^  Such  judgment  is  a  complete  ])r(»- 
tection  to  a  })urchaser  under  it,'  except  as  to  matters  which 
reach  the  jurisdiction  of  the  court.  Xeither  is  he  bound,  in 
any  case,  to  see  to  the  application  of  the  purchase  money,  for 
this  is  under  the  control  of  the  court;  and  however  unwise 
the  disposition  may  be,  his  title  will   not  be   affected  by  it.' 

§  14.  Compelling  Purcliasor  to  take  Title.  A  sale 
made  by  order  of  a  court  of  equity  is,  until  final  ratification, 
an  executory  contract,  open  'to  objection,  and  not  to  be  en- 
forced if  the  enforcement  would  be  inequitable  and  against 
good  conscience."  A  purchaser  can  not  be  compelled  to  ac- 
cept a  doubtful  title,  nor  one  which  the  court  can  not  war- 
rant to  him,  the  question  being,  not  whether  the  title  is 
good,  but  whether  it  is  clearly  so.  A  title  is  doubtful  when 
its  condition  invites  litigation.  "When  doubts  are  raised  by 
extrinsic  circumstances,  which  neither  the  purchaser  nor  the 
court  can  satisfactorily  investigate,  for  want  of  means  to  do 
so,  the  court  Avill  refuse  to  impose  same  on  the  purchaser. 
When  the  means  of  inquiry  are  offered,  and  the  result  satis- 
factory, performance  will  be  enforced.'  But  all  objections 
must  be  made  before  the  sale  is  confirmed,'  for  after  con- 
firmation no  relief  will  begranted  to  the  purchaser  upon  the 

'  Browning  v.  Howard,  19  Mich.  Ormsby  v.  Terry,   6    Bush  (Ky.), 

323.  553;   Mullins  v.   Aiken,   2    Heisk. 

•  Fleming  v.    Johnson,    26  Ark.  (Tenn.)  535. 
421;  Dugan  v.  Follett,  100111.581;         «  Kostenboder  v.   Spotts.   80  Pa. 

Allman  v.  Taylor,  101  111.  183.  St.  430:  Monaghan  v.  Small,  6  Rich. 

^Hening  V.  Punnett,  4    Daly  (N.  (S.  C.)  177;    Graham  v.  Bleakie,  2 

Y.).  543.  Daly  (N.  Y.),  55. 

••Knotts  V.  Stearns.  91  U.  S.  638.  '  Long  v.  Weller,  29  Gratt.  (Va..) 

»  Huiitmg  V.  Walter,  33  Md.  GO;  347. 


JUDICIAL    AXD    EXECUTION    SALES.  503 

ground  of  defect  of  title;'  he  can  not  have  a  rebate  of  price 
on  discovering  liens  unknown  to  him  before  confirmation,'' 
and  though  the  title  he  may  procure  from  the  court  mav 
be  worthless,  he  can  not  be  relieved  from  payment  of  the 
price.'  A  purchaser  can  not,  after  confirmation,  set  up,  as  a 
ground  of  relief  against  his  purchase,  facts  known  to  him 
before  it  was  completed;*  and  one  who  buys  without  inquiry 
or  examination  will  not  be  relieved  because  of  a  misappre- 
hension as  to  the  legal  effect  of  the  decree  for  sale  and  the 
character  and  extent  of  the  title  he  will  acquire;  such  mis- 
take being  a  mistake  of  law,  and  due  to  the  carelessness  of 
the  purchaser  himself.' 

§15.  Order  ot'Coiiflrniation.  After  the  sale,  and  be- 
fore the  execution  of  a  conveyance,  in  all  cases  of  judicial 
sales,  and  frequently  of  execution  sales  as  well,'  a  return  or 
report  of  sale  must  first  be  made  to  the  court  which  ordered 
the  same,  which  upon  examination  appnn-es  and  coiifii-nis 
the  action  of  the  officer  who  made  the  sale.  Until  this  has 
been  done  the  sale  is  incomplete,  and  confers  no  rights  on 
the  purchaser.'     In  judicial  sales  a  confirmation  is  rendered 

'  Farmers'    Bank    v.    Peter,    13  *  Spence  v.   Armour,   9    Ik-Lsk. 

Bush(Ky.),  591.     But  the  general  (Tenn.)  107. 

rule,     that    objections,     by    pur-  'Hayes  v.   Stiger,   29  N.  J.  Etj. 

chasers,  to  judicial  sales,  for  de-  196;  Morris  v.  Ilojjjie,   37   111.   150; 

fects  of  title,  must  be  made  before  Johnson  v.  Baker,  38  111.  98. 

the  sale  is  confirmed  by  the  court,  ^Confirmation  of  execution  salrg 

and    tliat     objections    afterward  is  not  necessary  at  common  law, 

c(;me  too   late,   does  not  apply  to  but   is  sometimes   rendered  so  Ijy 

the  e^juity  of  a  purclutser  arising  statute. 

from   after  discovered     mistakes,  ■■  Busey  f.  Hardin,  2  B.  Jhm.  (Ky.. 

fraud,  or  other  like  matter:     Wat-  407;  Bank  r.  Huiiiphn  vs.  JT  III.  227; 

Hi,n  V.    Hoy,    28  Gratt.    (Va.)  698.  Williamson   r.  Berry,  8   How.  .'•47; 

But  if  mistake  is  relied  on  it  nmst  Thorn  v.  Ingram,  2.'»  Ark.  K;  Vallc 

Im   the   mistake   of   Ixjth    i)artie8:  r.  Fleming,  19  Mo.' 4r)4;  Iluntintc  i". 

I>ing  V.  WeUer,  29  (iratt.  (Va.)  317.  Walter,  33  Md.  GO.     Apjiroviiig  the 

And  see  Berlin  v.   Melhorn,  7.1  V.i.  sale  makes  tho  olllcer's  act  that  of 

H:{9.  tlie   court,  and  where,   upon  suclj 

*  Farmers' Bank  u.  Pet<'r  13  Bush  ai»proval,  lie  is  ordered  to  make  a 

(Ky.),  591;  Curtis  v.   Ko<jt,  28  III.  dci-d,  no  order  coiilirminK  tin- ticcd 

807,  is   nercKsary:  Mcllany    f.  JSchiiik, 

»CapeIiart  V.    Uowery,     10     W.  88  111.307. 
Va.  180. 


5U4  ABSTRACTS    OF    TITLE. 

necessary  from  the  fact  that  the  court,  and  not  the  officer 
making  the  sale,  is  the  vendor,  and  confirmation  is  regarded 
as  tlie  final  consent;  bat  even  Avhere  there  has  been  no  con- 
firmation, if  a  deed  has  been  made  and  delivered,  and  there 
has  been  a  possession  and  holding  thereunder,  time  may,  if 
sulliciently  long,  operate  to  confirm  and  ratify  the  sale,  and 
jX-'rlect  the  title  of  the  purchaser.* 

Where  an  abstract  of  judicial  proceedings  culminating  in 
a  sale  and  conveyance,  is  shown,  the  order  of  confirmation 
is  material,  and  if  wanting,  the  apparent  defect  should  be 
noted  by  counsel  and  proper  inquiries  made  regarding  same. 

§  10.  EttVet  of  Coiiflrmatiou.  The  order  of  confirma- 
tion cures  all  irregularities  in  the  mode  of  making  the 
sale,'  but  adds  nothing  to  the  authority  of  the  officer  who 
made  it.  If  the  sale  was  without  authority,  the  ratification 
of  it  by  the  court  must  be  considered  as  having  been  given 
inadvertently,'  or,  if  given  deliberately  and  on  a  full  ex- 
amination of  the  facts,  must  still  be  regarded  as  an  unauthor- 
ized proceeding.*  So,  too,  where  the  court  has  exceeded  its 
jurisdiction  in  ordering  the  sale,  a  confirmation  would  have  no 
effect,  for  the  sale  being  void,  there  was  no  subject-matter  upon 
which  the  order  of  confirmation  could  act.  If  the  court 
had  no  jurisdiction  to  order  the  sale,  it  had  none  to  confirm 
it,  and  where  there  is  no  power  to  render  a  judgment  or  to 
make  an  order,  there  can  be  none  to  confirm  or  execute  it." 
But  "where  these  questions  do  not  arise  it  is  presumptive 
evidence  that  the  sale  was  regularly  and  properly  made, 
and  questions  arising  under  it  can  not  be  presented 
collaterally.' 

'Gowan  V.   Jones,  18  Miss.  1C4;  ^  Townsend  v.  Tallant,   33  Cal. 

Rorer  on  Jud.  and  Ex.  Sales,  57.  54;  Hawkins  v.  Hawkins,   28  Ind. 

*Koehler  V.   BaU,  2    Kan.     172;  70;  Bethel  v.  Bethel,  6  Bush  (Ky.), 

Hotchkissu.  Cutting,  14  Minn.  537;  65. 

Couover  v.  Musgrove,  68  111.  58.  ^  Crowell  v.  Johnson,  2  Neb.  146; 

8 Wills  V.   Chandler,   1   McCrary  Mattliews    v.    Eddy,  4  Oreg.    225; 

(C.  Ct.),  276.  Eaton  v.  White,  18  Wis.  517. 

■*  Sliriver's  Lessees.  Lynn,  2  How. 
60. 


JUDICIAL    AXD    EXECUTION   SALES.  505 

§  17.  Certiiicate  of  S:ile.  Where  a  contract  for  the  sale 
of  land  is  executory  on  both  sides,  it  is  necessary  tliat  same 
should  be  evidenced  bv  a  memorandum  in  writina-,  sitrned 
by  the  vendor,  and  sherilf's  sales  form  no  exception  to  the 
general  rule.'  If  no  certificate  or  deed  is  given  to  the  pur- 
chaser, and  no  memorandum  of  the  sale  is  made  on  striking 
off  the  property,  the  sale  can  not  be  enforced,  even  though 
the  purchase  money  is  paid,  and  the  sheriff  afterward  makes 
due  return  of  the  sale.''  The  sheriff,  in  making  sales,  acts 
ns  the  legal  agent  and  representative  of  the  plaintiff  and 
defendant  in  the  judgment,  and  of  the  accei)ted  l)idder  at 
the  execution  sale,  and  he  has  the  right  to  bind  all  the  ])ar- 
ties  by  his  memorandum.  This,  it  has  been  held,  he  may  do 
by  his  return  on  the  execution;'  his  return  of  the  facts  attend- 
ing the  purchase,  made  at  the  time  of  the  sale,  taking  the 
case  out  of  the  statute  of  frauds,'  and  binding  all  parties  by 
an  enforceable  executory  contract.  It  is  no  part  of  the 
olfice  of  a  sheriff's  return,  however,  to  show  what  land  is 
sold  on  execution,  the  province  of  a  return  iK'ing  toshow 
the  satisfaction  or  ])art  satisfaction  of  the  judgment,  or  fail- 
ure to  make  satisfaction  thereof,  and  the  particulars  of  tlie 
sale,  subject-matter,  consideration,  ])urchase,  etc.,  are  best 
shown  Ijy  the  certificate  of  ])urchase  or  by  the  recitals 
in  the  sheriff's  deed.'  Deeds  do  not  issue  immediately 
upon  execution  sales,  and,  in  many  cases,  judicial  sales  as 
well,  but  a  rea.sonal>le  time  is  allowed  during  which  the 
judgment  debtor  ma}'  redeem  the  projierty  upon  payment 
of  the  judgment,  costs,  charges,  etc.,  and  a  certiiicate  stating 

'  Ruckle  r.  Diirhour,  48  lud.  274;  silk's  are  imt  witliin  tin-  statuto  of 

Evans  v.  Ashley,  H  ^^lo.  177.  frauds:  Bozza  v.  Howe.  HO  111.  198; 

'  Gf«sard  V.    FerKUSon,  54   Iiid.  Kiie  Ins.  Co.  r.  L<>)iiii.s,    11   Taine, 

.'>19;   liut  see  Sanborn  v.  Chamber-  4.S1;  Steward  i\  (Sarvin,  III  .Mo.  'M\; 

lin,  101  M:ws.  409.  Hutton    r.  WilliaiiiH,   ijn  Ala.    MKJ. 

'  Wan-lioUHe    Co.    v.    Terrill,   }'■'>  And  in  souk-  Slat<'S  they  are   held 

BuhIi  (Ky.),  4(!:j;Sanl><jrn  v.  Cliain-  to  he  not  within  the  Ht^itute  at  all: 

berlin.   101   Miuw.  409;    Iti'niinKton  Fulton   r.  McH.re,   2o    I'a.  St.    408; 

f.  Linthifum.  14  I'et.  92.  Ilall.<k  v.  (Jny,  9  Cal.  jsi. 

*  It  is  a  prfvailin»<  rule,  however,  '  (Janlner  v.  Ebcrhart.  b:j  111.  ;J1G. 
thut    afU.-r    cunfirniation    judicial 


50G  AllSTKACTS    OF    TITLE. 

the  facts  is  issued  to  the  ]nirchaser  on  the  sale.'  A  (lii]ili- 
cate  of  this  certilicate  is  recorded  iu  the  registry  of  decils, 
and  the  certilicate,  duplicate  or  record  of  same  is,  by  law, 
made  evidence  of  the  facts  therein  stated.  In  case  of  re- 
demption, as  provided  by  law,  a  certilicate  of  redemption  is 
issued  and  recorded  in  like  manner.  Tlie  certificate  of  sale 
made  by  the  sheriff  is  sufficiently  shown  as  follows: 

Seth  Hanchett,  Sheriff  '\       Certificate  of  sale, 
of  Cook  Co.,  Ills.,       [      Dated  March  i,  1SS2. 

to  I       Recorded  March  'J,  1SS2. 

Ilirarii  Smith.         J       Book  WO,  page  9A0. 

Said  Sheriff'  {by  deputy) "  certifies 
that  hy  virtue  of  a  certain  {alias,  pluries,  etc.)  writ  of  execu- 
tion to  him  directed  from  the  Superior  Cou7't  of  Cook  County, 
issued  071  a  judgment  rendered  at  the  Novemher  Term,  ISSl, 
of  said  court,  in  favor  of  William  Thompson,  plaint  ff, 
against  Thomas  Jones,  defendant,  for  $1,000,00  and  costs, 
dated  Fehruary  1,  18S2,  he  did  on  March  1,  1S82,  at  10 
o'clock  A.  M.,  at  the  front  door  of  the  court  house  in  the  city 
of  Chicago  {the  time  and  place  aforesaid  having  been  duly 
advertised  according  to  law),  sell  at puhlio  vendue  all  right, 
title  and  interest  of  said  defendant  in  and  to  [here  set  out  the 
description  as  found  in  the  certificate\  to  Ilirarn  Smith  for 
$1,035.00,  said  sum  being  the  highest  and  best  bid  offered  for 
said  tract  or  lot  of  land,  the  same  having  been  first  (fi'ered  in 
separate  tracts  or  lots,  without  receiving  any  hid  or  bids  there- 
for or  for  any  part  thereof^  and  the  purcJi.aser  loill  be  entitled 
to  a  deed  of  the  prremAses  so  sold  on  March  1,  1883,  unless  the 
same  shall  he  redeemed  as  provided  by  law. 

As  has  been  seen,  where  lands  are  sold  by  order  of  court, 
although  the  sheriff  is  a  proper  person  to  make  the  sale,  the 
court  has  discretionary  power  to  a])point  a  commissioner, 

'The  legal  effect  of  the  certifi-  demption:    Vaughn  i'.  Ely,  4  Barb, 

cate  is  to  evidence  the  hen  of  the  156,  and  see  Evertson  v.  Sawyer,  2 

purchaser  upon  the  lands,  for  the  Wend.  507. 

amount  of  his    bid  and  interest,  '  When  such  is  the  case, 
during  the  period  allowed  for  re- 


JUDICIAL   AND    EXECUTION    SALES,  507 

master  in  chancery,  or  other  officer  of  the  court,  or  any  fit 
and  proper  person'  to  make  it.  Sales  made  l)y  a  commis- 
sioner or  master,  under  the  direction  of  a  court  of  chancery, 
do  not  stand  in  all  respects  on  a  footing  with  sales  made  by 
a  sheriff  under  an  execution.  The  latter  are  made  under 
the  naked  authority  of  the  writ,  the  former  under  the 
direct  supervision  of  the  court.'  Judicial  sales  are  usually 
intrusted  to  a  master, who  also  executes  the  deed,  and  on  such 
sale  a  certificate  issues  to  the  purchaser  in  like  numner  as  in 
sales  on  execution.  The  following  abstract  presents  the 
salient  features  of  a  master's  certificate : 


Iltnry      TT.     Bishoj?^^ 
^Tastertn  Chancery 
of  the  Circuit  Court 
of     Cook      county^ 
111, 

to 
Winia7n  Jachson. 
Due.  10,028. 


Certificate  of  Sale. 

Bated  2fay  3,  ISSO. 

Recorded  jlfay  3,  18S0. 

Booh  210,  page  500. 

Said  master  certijies  that  in  pur- 
sxiance  of  a  decree  entered  June  15, 
1879,  by  said  court  in  the  cause  in 
chancery  entitled  SJiere  set  out  the 
title  of  the  cau^e\  he  didy  advertised 
according  to  law  the  pnxjnises  hereinafter  described  to  be  sold 
at  public  auction  to  thp  highest  and  best  bidder  for  cash  at 
10  o'' clock  A.  M.,  on  Miy  3,  1880,  at  the  front  door  of  the 
court  house,  in  the  city  of  Chicago,  III. 

That  at  the  time  and  place,  so  aforesaid,  appointed  for 
said  sale,  he  attended  to  make  the  sarne  and  offered  and  ex- 
posed  said  jrremises  for  sale  at  jndjlic  auction  to  the  highest 
and  best  bidder  for  cash.  Whereupon  Willia?n  Jackson 
offered  and  bid  therefor  $1,000.00,  and  that  being  the  high- 
est awl  best  bid  therefor,  he  accordingly  struck  o^'  and  xold  to 
said  bidder  for  said  sum  the  said  premises  which  are  situated 
i7i  Cook  county,  Illinois,  and  described  as  follmrs,  to  wit: 
[here  describe  the  j^f'oj'erty.]  lie  further  certif<:s  that  said 
William  Jaekson,  his  legal  representatives  or  assigns,  will  be 
entitled  U>  a  deed  of  said  pninises  on  Jfay  3,  1881,  unli.s{i  the 
same  shall  be  redicntid  arrording  to  laio. 

•MecUe  f.  Ta.!:,'.  tt,  1  S.  C.  I'JT;  UuslII  v.  Tuwill,  7  CoMw.  (T.  mii.)L'77. 


50S  ABSTRACTS   OF   TITLE. 

The  certificate  of  sale  confers  on  the  holder  no  title  or  in- 
terest in  the  lantl,  especially  where  the  time  for  redemption 
has  not  expired,'  and  the  possession  of  the  defendant  in  ex- 
ecution can  not  be  disturbed  until  his  title  has  been  trans- 
ferred by  the  sheriffs  deed.'' 

§  18.  Assignment  of  Certificate.  Certificates  given  at 
judicial  and  execution  sales  are  usually  by  statute  made 
assignable  by  indorsement,  and  the  assignee  is  entitled  to 
the  benefits  in  every  respect  to  which  the  original  purchaser 
was  entitled  therefrom.  It  is  subject  in  his  hands  to  all  de- 
fenses that  could  have  been  made  a^-ainst  it  in  the  hands  of 
the  assignor,  such  assignee  standing  in  the  shoes  of  the 
original  purchaser.  But  such  purchaser  does  not  take  the 
land  itself  by  his  bid,  but  only  an  incipient  intei'est  that 
may  or  may  not  ripen  into  an  absolute  estate;  and  as  a 
party  can  not  assign  that  which  he  hath  not,  so  such  pur- 
chaser, not  having  the  legal  title  to  the  property,  of  course 
can  not  assign  it.  It  would  seem,  therefore,  that  tiie  as- 
signee can  not  be  regarded  as  an  innocent  purchaser,  nor  en- 
titled to  protection  as  such,  until  he  is  clothed  with  a  legal 
title  by  a  shei-iff 's  deed.'  Where  the  original  purchaser  dies 
before  the  issuance  of  a  deed,  in  the  absence  of  an  express 
devise,  his  executors  will  succeed  to  no  rights  in  the  land, 
and  have  no  right  to  demand  a  deed,  but  the  sheriff's  deed 
should  be  made  to  the  party's  heirs  at  hiAv.^ 

§  19.  Proof  of  Title  Under  Jnrtieial  and  Execntion 
Sales.  "Where  a  party  attempts  to  avail  himself  of  a  decree, 
as  an  adjudication  upon  the  subject-matter,  or  as  a  link  in 
his  chain  of  title,  founded  on  a  judicial  sale  under  the  decree, 
he  is  required  to  produce  the  judgment  roll,  so  that,  among 
other  things,  the  court  may  determine,  on  an  inspection 
of  the  entire  roll,  whether  the  court  which  rendered  the  de- 
cree had  jurisdiction  of  the  subject-matter.'     It  is  true,  the 

'Huftalin  v.  Misner,  70  111.  55.  ■•Potts  v.   Davenport,  79  111.  455; 

«Hays  V.  Russell,  70  111.  669.  Swink  v.  Tliompson,  31  Mo.  336. 

5  Roberts  v.  Clelland,  82  lU.  538;  'See   "Chancery   Proceedings," 

Reynolds  v.  HaiTis,  14  Cal.  667,  and  infra. 
see    Messerschniidt    v.    Baker,    22 
Minn.  81. 


JUDICIAL    AND    EXECUTION    SALES.  509 

purchaser  may  rest,  in  sui>port  of  his  title,  u]ion  the  jiulg- 
ment  or  decree,  and  the  deed  thereunder,  but  he  must  ]m-o- 
duce  a  valid  judgment  or  decree,  and  the  Avell  establislied 
rule  is  that  the  method  of  ])roving  such  judgment  or  decree 
to  be  valid  is  by  the  production  of  the  roll,  on  an  inspection 
of  "svhicli  it  may  be  determined  whether  the  court  had  the 
necessary  jurisdiction  of  the  subject-matter.'  In  analogy, 
therefore,  to  the  presentation  of  the  judgment  roll,  a  syno])- 
sis  of  the  papers  and  proceedings  in  the  cause  should  alwaAS 
form  a  preliminary  statement  to  the  abstract  of  the  officer's 
deed,  and  should  be  sufficiently  full  and  ex]ilicit  to  enable 
counsel  to  pass  with  judicial  discrimination  upon  the  merits 
of  the  title  as  affected  by  the  proceedings.  In  all  pro- 
ceedings in  equity,  Avhere  the  suits  are  wholly  or  partial! v 
in  re}?i,  this  is  always  done,  but  in  legal  actions,  or  where 
the  proceeding  is  in  personam^  a  different  rule  seems  to 
prevail.  The  reason  for  this  is  ap])arent,  in  that  i)ersonal 
actions  affecting  the  land  only  collaterally,  and  by  reason  of 
the  statutory''  hen  of  the  judgment,  examiners  have  not 
deemed  it  necessar}-  to  show  the  various  stei)s  which  led  up 
to  the  judgment,  but  have  contented  themselves  with  a 
simple  showing  of  the  fact  that  judgment  was  rendered. 
Yet  if  the  court  failed  to  obtain  jurisdiction  of  the  person  of 
the  judgment  debtor,  and  has  erroneously  jiroceecKMl  to  liear 
the  proofs  and  render  judgment  when  no  sullicicnt  ste[)s  had 
been  first  taken  to  bring  the  parties  properly  l)efore  it,  any 
sale  made  in  .satisfaction  of  such  judgment  would  be  void 
and  confer  no  title  on  the  ]nin-has('r.'  These  are  extreme 
cases,  yet  they  have  occurred,  and  nuiy  again,  and  it  woidd 
seem,  theref(jre,  that  in  actions  /;<  jxrxniKnn^  foHowi-d  by 
judgment,  execution  and  (h_;<'<l,  sufficient  shouhl  be  shown  to 
enable  counsel  to  see  that  the  j)artie8  wen-  ju'opeily  before 
the  court. 

'  IliirixT  v.  Itnwe,  W  Cal.   23H;  1  exfciitlnn:  tho  jiul^rtneiit  wiwaftiT- 

(irr'cul.    Kv.  ^  511;  2  Phil.   Ev.  lUS;  wsinl    dtclund    void    for   want  of 

Vail  V.  I^lr-hart.  0'.»  III.  :j;i2.  proof  of  HcrviiT.   and   the  wile  do- 

'  AIImm-   v.    Ward.    H    Mhkh.     70;  clanMl  a  nullity;  and  w<' JoluiMon  f. 

Mdlir  r.    Han<ly.    10  III.  MH.     In  lialur,   Hh    III.    UH;   l.ut    conipuro 

tlii.H  cuHc,  there  wa«  a  buIc  under  Fiteh  v.  IJoyer,  SI  Tux.  8U0. 


510:  ABSTRACTS    OF    TITLE. 

§  20.  Continued.  It  is  true,  however,  as  a  <:^eneral  prop- 
osition, that  a  ilomestic  judgment  of  a  court  of  genei'al  ju- 
risdiction, upon  a  subject-matter  within  the  ordinary  scope  of 
its  powers  and  proceedings,  is  entitled  to  such  absolute  verity, 
that  in  a  collateral  action,  even  where  the  record  is  silent 
as  to  notice,  the  presumption,  when  not  contradicted  by  the 
record  itself,  that  the  court  had  jurisdiction  of  the  person  also, 
is  so  conclusive  that  evidence  aliunde  will  not  be  admit- 
ted to  contradict  it.'  It  is  probably  on  the  strength  of  this 
doctrine  that  examiners  have  been  accustomed  to  show  only 
the  fact  of  judgment,  and  not  the  preliminary  steps  attend- 
ing it,  assuming  the  judgment  to  be  valid;  and  attorneys 
have  passed  upon  the  facts  so  presented,  in  view  of  the  oft- 
repeated  principle,  that  all  that  a  purchaser  must  show  to 
sustain  his  title,  is  a  valid  judgment,  execution,  and  a  sheriif's 
deed."  If  the  court  had  jurisdiction  of  the  subject-matter, 
and  the  proper  parties  were  before  it,  and  its  proceedings 
were  regular,  and  the  sale  was  properly  conducted,  then 
the  title  of  an  innocent  purchaser  will  not  be  disturbed,  and 
he  may  rest  secure  upon  the  assurances  of  his  deed,  but  from 
a  o"eneral  view  of  the  reported  cases,  it  would  seem  that  the 
four  points  just  enumerated  are  the  great  essentials  to  a  per- 
fect title,  and  all  which  a  purchaser  must  show  to  satisfac- 
torily prove  it.  A  fair  purchaser  is  not  bound  to  go 
throuo-h  all  the  proceedings,  and  to  look  into  all  the  circum- 
stances, and  see  that  the  decree  is  right  in  all  its  parts. 
He  has  the  right  to  presume  that  the  court  has  taken  the 
necessary  steps  to  investigate  the  rights  of  the  parties,  and 
upon  such  investigation  has  properly  decreed  a  sale.     He 

'  Fitch   V.    Boyer,  51  Tex.   336;  law  presumption  in  favor  of  the 

Guilford    v.   Love,    49    Tex.    715;  jurisdiction  and  regularity  of  the 

Griffin  v.  Page,  18  Wall.  350;  Halin  proceedings  of  courts  of  record  or 

V.  Kelly,  34  Cal.  391;  Freeman  on  general  jurisdiction,  had  its  origin 

Judgts,§124;  2Am.Lead.  Ca-s.  736.  in  the  fact  that,  at  common  law, 

-Coffee  V.   Silvan,  15  Tex.    362;  no  judgment  could  be  given  against 

Hughes  V.  Watt,  26  Ark.  228:  Len-  a  defendant  until  he  had  appeared 

nox  r.  Clarke,  52  Mo.  115;  Splahn  in  the  action:  Neff  v.  Pennoyer, 

V.  Gillespie,  48  Ind.  397;  IMayo  v.  3  Sawyer,  274. 
Foley,  40  Cal.  281.     The  common 


JUDICIAL    AXD    EXECUTION    SALES.  511 

will  not  be  affected  by  any  imperfection  in  the  frame  of 
the  bill  if  it  contain  sufficient  matter  to  show  the  propriety 
of  the  decree,  and  the  propriety  of  the  decree  must 
be  attested,  and  its  validity  determined  by  the  then  existing 
circumstances.' 

§  21.  Probate  Sales.  "  Probate  sales,"  says  Mr.  Free- 
man, "  we  are  sorry  to  say,  are  generally  viewed  with  ex- 
treme suspicion.  Though  absolutely  essential  to  the  admin- 
istration of  justice,  and  forming  a  portion  of  almost  every 
chain  of  title,  they  are  too  often  subjected  to  tests  far  more 
trying  than  those  applied  to  other  judicial  sales.  Mere  irreg- 
ularities of  proceeding  have,  even  after  the  proceedings  had 
been  formally  approved  by  the  court,  often  resulted  in  the 
overthrow  of  the  purchaser's  title.  In  fact,  in  some  courts, 
the  spirit  manifested  toward  probate  sales  luis  been  scarcely 
less  hostile  than  that  which  has  made  tax  sales  the  most 
precarious  of  all  the  methods  of  acquiring  title."  "  Possibly 
the  learned  author  has  taken  a  too  extrenie  view  of  the 
matter,  though  it  must  be  conceded  that  by  reason  of  the 
many  jurisdictional  facts  and  circumstances  Avhich  environ 
sales  of  this  character,  titles  derived  thereunder  are  not  as 
stable  as  those  derived  under  sales  in  equity,  or  even  by  ex- 
ecution.'    The  jurisdiction  of  probate  courts  to  order  the 

'  Ziikle  V.  McCue,  26  Gratt.  (Va.)  fact  that  its  jtractioc  is  neither  in 

517.  accordance  with  estalilished   coni- 

''  Freeman  Void  Jud.  Sales,  44.  mon   law  or  chancery  precedents, 

*  While  the  decrees  of  a  probate  and  lience  not  reviewable  in  tlie 

court,  upon  matters  within  its  ju"  light  afforded   by  sucli  precedents, 

risdiction  are  as  final   and   conelu-  they   are   not  merely   voidable    if 

eive  a.s  the  judgnieiitK  of  any  other  want  of  jurisdiction  apjuars,  but 

court   (Barker   t'.    Barker,  14  Wis-  absolutely  void  (Sumner  r.  Parker, 

181;  Cunuiiinps  I'.  Cumminj^s,  123  7  M;uw.  7'J;  Smitli  v.  Kice,  11  Mass. 
Mass.    271;  Dayton  v.    Minl/er,  22   .  r»()7),   and     an    utJwarnmted    step 

Minn.  'SWi),  and  its  records  imiM)rt  at   the  outset   will   Kuflice  to  viti- 

alwolute  verity  (Wofjd  v.  Myrick,  ate    all    subsciiuent     pr.MifdinKM. 

1«J  Minn.  494;  Tilibitts  v.  Tilton,  24  Thiw,  if  the  original   apiH)intment 

N.  H.  124),  yet,  owing  to  tlie  i)e«ul-  of  the  udministrat«ir  is  void,  all  the 

iarlveonnectedcharact4'rof  itspro-  Hulwe^iuent    procre<lingH   are   voiti: 

ceediiigH,  and  the  int«rdependence  (Jury's   Trob.    I'rac.   12;    Fre<lerick 

of  all  its  acts,  as  well  iw  the  furllnr  ^  I'ucijuette,  lU  Wis.  Ml. 


512  ABSTKACTS    OF   TITLE. 

sale  of  lands  of  a  decedent  is  statutory  and  limited,  and 
must  apjiear  from  the  record,  and  Avliile  no  intendments 
■will  be  made  in  its  fav^or,  yet  there  is  a  growing  tend- 
ency to  disregard  mere  irregularities,  errors  of  form  and 
other  matters  not  directly  affecting  jurisdiction,  and  all  pre- 
sumptions are  in  favor  of  the  sale  and  of  the  validity  of  the 
title  based  on  such  proceedings.'  Probate  courts  are  in- 
vested by  law  with  a  general  jurisdiction  in  cases  where 
real  estate  is  to  be  sold  for  the  payment  of  the  deljts  of  de- 
cedents, and  where  a  court  ordering  a  sale  has  jurisdiction 
of  the  subject-matter  and  of  the  proper  parties,  even  if  the 
proceedings  are  irregular  and  erroneous,  the  decree  and  sale 
under  it  can  not  be  assailed  in  a  collateral  proceeding,'  nor 
can  the  ]nirchaser  for  that  reason  avoid  the  sale.'  Until  re- 
versed, the  decree  confers  power  to  sell  and  pass  the  title, 
however  erroneous  it  may  be.*  Ko  class  of  public  sales  are 
better  entitled  to  a  just  degree  of  protection  than  those  of 
administrators.' 

It  must  ever  be  borne  in  mind,  however,  that  the  founda- 
tion of  all  title  derived  through  an  administrator  is  the  fact 
of  the  death  of  the  intestate.  This  must  ahvays  affirma- 
tively appear — directly  and  positively.  Administrations  are 
sometimes  granted  on  presumptions,  but  every  one  acts  at 
his  peril  in  dealing  with  an  administrator  who  has  been 
appointed  upon  a  mere  presumption  that  his  supposed  intes- 
tate is  dead;  and  all  persons  are  conclusively  presumed  to 
know,  if  the  supposed  intestate  should  subsequently  turn  up 
alive,  that  the  grant  of  administration,  and  all  acts  done 
under  it,  would  be  absolutely  void." 

'  Reynolds  v.  Schmidt,  20  Wis.  v.  Mintzer.  22  Minn.  393:  Fairing- 

374:    ilohr  v  Tulip,   40   Wis.    GG;  ton  v.   Wil.son,  29  Wis.  db'S;  Falk- 

Woods  V.   Monroe,    17  Mich.    238;  ner  v.  Guild,  10  Wis.  563. 

Morrow  v.  Weed,  4  lov.a.  77*,  King  »  Wing  v.  Dodge,  80  111.  564. 

r.  Kenfs  Heirs,  29  Ala.  542;  Moffitt  MVing  u    Dodge,    80  lU.    564; 

V.  Mofiitt,  69  111.  641;  Maurr  v.  Par-  Montgomery  v.  Johnson,   31  Ark. 

rish,   26   Ohio  St.    636;   Bowen  v.  74. 

Bond,  80  III.  351.  '  Gou<lj-  v.  Hall,    36  111.  313;  Mc- 

'  Nichols  V.  Mitchel,  70111.   258;  Cowan  v.  Foster,  33  Tex.  241. 

Wing  V.  Dodge,  80  111.  5G4;  Dayton  «  Thomas  v.  People,  107  111.  517. 


JUDICIAL    AND    EXECUTION    SALES.  513 

§  22.  Mature  and  Requisites  of  Probjite  Sales.  Sales 
in  probate,  though  made  in  connection  with,  and  as  a  i>art 
of  the  regidar  administration  and  settlement  of  the  dece- 
dent's estate,  are  yet  to  be  regarded  as  s])ecial  and  inde]HMul- 
ent  proceedings.  Such  proceedings  are  regularly  inaugu- 
rated by  the  filing  of  a  petition,  stating  the  necessary  juris- 
dictional facts,  and  praying  for  license  to  sell,  and  it  is  this 
})etition,  and  the  recital  of  the  statutory  requisites,  which 
gives  to  the  court  its  jurisdiction  to  take  cognizance  of  the 
matter  and  make  subsequent  orders  in  relation  to  same.' 
The  proceeding  is  in  the  nature  of  an  action,  of  which  the 
petition  is  the  commencement,  and  the  order  of  sale  tlio 
judgment,  the  whole  forming  a  new,  sei)arate  and  inde- 
pendent proceeding,  depending  for  its  validity  upon  the 
sufficiency  of  the  facts  stated  in  the  ]ietition.'  All  the 
necessary  features  common  to  equitable  actions,  both  as  re- 
spects the  subject-matter  and  the  parties,  must  be  present 
and  affirmatively  appear,  and  as  the  action  is  adversary  in 
its  character,  and  in  derogation  of  the  rights  of  devisees 
and  heirs,  all  the  parties  having  an  interest  in  the  ])remises, 
defendant  as  well  as  plaintitT,  must  be  regularly  brought 
before  the  court.*  The  filing  of  the  petition  will  give  the 
court  jurisdiction  of  the  subject-matter, '  but  jui'isdiction  must 
also  be  obtained  over  the  persons  of   the  heirs  and  devisees 

'  Pryor  v.  Downey,  HO  Cal.   389:  v.  Pierson,  21  Ind.  IS;  Fisko  v.  Kt-l- 

Hall  V.  Cliapman,  35  Ala.  553;  Jack-  logg,  3  Oreg.  503.    This  is  contrary 

son  V.  Robin.son,  4  Wend.  436;  Eth-  to  the  doctrine  stated  in  GrignoiTa 

ell  r.  Nichols,  1  Idaho  (N.  S.),  741.  Lessee  v.  Astor,  2  How.  (U.  S.)  3iy, 

*  Tlie  necessity  for  a  sale  is  not  a  whicli    for   many    j-eare  was  ac- 

ma'.ter  for  tlie    administrator  or  c<"i>tt'd    in    tliis    country,    and     is 

executor   to  determine,    but   is    a  founded  on  hcttfr  rca-sori  and  more 

conclusion  whicli  the   court  must  correct  iirinti|iles.     In   that    case, 

draw   frona  facts  stated,   and  the  tlio  proceeding  wiis  held  to  Jm-   in 

l>etitJon  must  furnish  materials  for  r<'m  and   not  adversary,  and  that 

tlie  judgment:   Pryor  v.  Downey,  the   administrator    represeiiLs   the 

50  Cal.   39S;    Ethell   v.    Nicliols,    1  land. 
Idaho  (N.  S.),  741.  ■•  (Jrayson  i-.  We<Mle.  03  Mo.  r,',>3: 

'  Morris  v.   Hogle,   37     III.    150;  Uotwfunl  v.  O'Connor,  57  111.  7U. 
Hc^.rd  V.  Hoard,   41  Ala.  590;  Guy 
88 


514  ABSTRACTS    OF    TITLE. 

in  the  manner  prescribed  by  law,  as  well  as  of  the  subject-mat- 
ter, or  its  order  will  be  void.'  Hence,  the  proceedings  must 
show  issuance  and  ser\ice  of  citations,  or  appearance  in  the 
action,  and  a  due  observance  of  the  rights  of  minors  and 
others  under  disabilit}',  for  whom  s])ecial  guardians  must  be 
appointed,  should  they  have  no  guardians,  or  if  having  a 
guardian  they  fail  to  appear.''  The  metliod  of  citation  is 
statutory,  but,  as  a  rule,  contemphitcs  a  general  notice  by 
publication  and  a  personal  service  on  all  persons  interested, 
if  within  the  jurisdiction  of  tlie  court,  and  if  the  proofs 
show  an  insulHcient  service  or  publication,  the  subsequent 
proceedings  are  fatally  defective.* 

§  23.  Abstract  of  Probate  Sales.  Sales  by  the  execu- 
tor or  administrator  may  be  shown  in  connection  with  the 
settlement  of  the  decedent's  estate,  or  as  independent  ex- 
hi1)its.  Where  a  former  abstract  shows  the  death  of  the 
decedent,  ]irobate  of  his  estate,  etc.,  and  a  sale  of  all  or  a 
portion  of  the  land  of  such  decedent  occurs  during  a  subse- 
quent examination  or  continuation,  no  necessity  exists  for 
re-exhibiting  the  probate  proceedings,  and  the  abstract  of 
the  sale  commences  with  the  filing  of  the  petition.  Where 
the  examination  is  original,  sufficient  of  the  action  of  the 
probate  court  must  be  given  to  show  the  facts  of  death,  ap- 
plication for  probate,  appointment  of  administrator,  and 
proof  of  heirship,  in  case  of  intestate  estates;  and  of  pro- 
bate of  will,  letters  testamentary  and  devisees,  in  case  of 
testate  estates.  Examples  of  probate  of  wills  will  be  found 
in  the  chapter  on  wills,  and  of  the  probate  of  intestate  es- 
tates in  the  chapter  on  descents;  a  probate  sale  in  either 
case  would  be  shown  somewhat  as  follows,  making  due 
allowance  for  the  minor  differences  which  must  appear 
between  testacy  and  intestacy: 

'  Fiske  V.  Kellogg,  3  Orog.  503.  of  in  a  collateral  proceeding:  Har- 

-  Fiske  V.  Kellogg,  3  Oreg.  503.  ris  v.  Lester,  80  111.  307. 

The  omission  to  make  the  guardian  ^  Blodget  v.   Hitt,   29  Wis.  169; 

of  the  minor  heirs  or  devisees  a  Molrr  i".  Tulip,  40  Wis.  66;  Sibley  u. 

party,  can  not  be  taken  advantage  Waffle,  16  N.  Y.  180. 


JUDICIAL    AND    EXECUTION    SALES. 


515 


Prolate  Court  of  Cook  County,  III. 


Samuel     Jf.       Iltnder-" 
son,   arlministrator  of 
the  Estate  of  Nathayi 
AdaiTis,  deceased, 
vs. 

Charts  W. 
Henry  S.  Adams, 
Mary  E.  Adams, 
widow  of  Nathan 
Adams,  and  Thomas 
M.  Smith. 


Probate  Sale. 

Petition  of  Samuel  M.  Hender- 
son, administrator  aforesaid,  filed 
July  6,  ISSl. 

Represents  {among  other  things) 
Adams,  \that  the  personal  estate  of  deceased 
is  insufiicient  to  pay  claims 
against  said  estate  in  the  sum  of 
$1,000.00,  beside  the  cost  of  ad- 
ministration.^ That  deceased  died 
J  having  a  claim  and  title  to  the  fol- 


lowing described  real  estate:  [<h- 
scinbing  the  same.']  That  said  deceased  left  surviving  Mary 
E.  Adams,  his  widoio,  having  a  dower  interest  in  his  reed  es- 
tate; and  Charles  W.  Adams,  and  Henry  S.  Adams,  his 
children,  his  oidy  heirs  at  law.  That  Henry  S.  Adams  is  a 
minor  and  has  no  guardian.  That  Lot  22,  in  Block  IJ^ 
[etc.,']  is  now  occupied  by  and  in  the  possession  <f  Thomas  P. 
Smith. 

Prays  that  a  guardian  ad  litem  may  be  appointed  for  said 
minor  heir,  and  that  the  Court  vnll  order  and  direct  said 
petitioner  to  sell  the  said  real  estate  or  so  much  as  may  be 
necessary  to  pay  said  deficiency. 

Sworn  to  July  6,  ISSL 

Summons  issued,  dated  July  G,  ISSL  to  all  of  said  defend- 
ants, returnable  on  the  3d  Monday  of  July,  ISSL 

Summons  returned  indorsed  as  follows  ;'  \_In  a  necessary 
case  set  out  the  retuim.] 

Order  entered  July  25,  ISSl,  appointing  Charles  Anderson 
guardian  ad  litem  for  said  minor  difenditnt. 


'  Tliis  is  the  vital  part  of  the  pe- 
tition, for  a  sjile  of  land  to  pay 
debts  is  never  allowed  until  the 
personal  proju-rty  has  been  ex- 
hausted; tliis  statement  istiierefure 
a  jurisrijctional  fact:  Foley  v,  Mc- 
Donald, 10  MIks.  23H. 

'The  nturn  of  prcKvsH  in  every 
action  furnisheM  the  pn»of  of  jurin- 
diction  over  the  perkon,  and   in  all 


ca'ies  of  defaidt  or  non-appearance 
of  any  of  the  parties  the  nu-tluMl 
of  service  is  invariably  t<j  1m>  shown 
by  a  transcript  of  the  olHcer's  re- 
turn. Where  all  parties  have  a|»- 
peari'd  this  brcoincs  of  minor  im- 
portance, and  a  briff  statement  of 
the  fact  of  Hcrvice  without  disclori- 
in;;  the  method  ib  bulhcient. 


516  ABSTRACTS    OF    TITLE. 

A7isrvc7'  hj  said  defendants  and  said  minor  defendant  !>;/ 
his  yvardian  ad  litem,  and  reply  thereto,  filed  July  25  1881.' 
\_Xote  default,  if  any. 1 

Decree  entered  July  25,  ISSL  {Record  2  of  decrees,  j^age 
JfO.)     [Set  out  the  decree  or  the  substance  of  sa?ne.'] 

Administrator'* s  report  of  sale  filed  Sept.  22,  1S81.' 

Represents,  that  in  pursuance  of  a  decree,  etc.,  [set  o^tt  the 
substance  of  the  rej^ort.']     Swoim  to,  Sept.  19,  1881. 

Attached  to  the  report  of  sale  and  filed  therewith,  is  proof 
of  p)ubUcation  and  posting  notices  of  sale. 

Printed  copy  of  notice  of  sale  gives  title,  etc. 

Administrator'' s  report  of  sale  approved  and  sale  confirmed, 
Sept.  22,  1881. 

'  If  the  court  has  acquired  juris-  dence  appears  of  statutory  essen- 
diction  of  the  subject-matter  by  the  tials,  as,  of  posting  notices  of  sale, 
filing  of  a  petition,  and  of  the  per-  or  other  necessary  incidents,  state- 
sons  of  infant  descendants  by  the  ments  under  oath  in  a  report  of 
publication  of  notice,  a  failure  to  sale  have  been  held  sufficient  in  col- 
appoint  a  guardian  ad  ??7e?7i,  or  his  latei-al  proceedings:  Woods  v. 
failure  to  answer,  will  not  defeat  Monroe,  17  Mich.  238.  In  such 
tlie  jurisdiction  :  Gage  v.  Schroe-  cases  the  recitals  of  tlie  report  be- 
der,  73  111.  44.  come  necessary  to  show  validity, 

'  It  is  not  usual  to  abstract  the  and   should  find  appropriate  men- 
record  of  sale,  but  where  the  record  tion. 
is  silent  on  vital  points  or  no  evi- 


CHAPTER  XXVIII. 


CHANCERY   RECORDS   AND   PROCEEDINGS. 


1. 

Chancery  proceedings  gener- 

§ 12. 

ally. 

i;J. 

2. 

Authority  and  jurisdiction  of 
chancerj-  courts. 

14. 

3. 

Authorit}'  and  jurisdiction  of 

15. 

probate  courts. 

IG. 

4. 

Actions  and  proceedings  to 

17. 

be  noti(::ed. 

18. 

5. 

Jurisdiction  the  groat  essen- 

19. 

tial. 

20. 

6. 

Notice  afforded  by  cliancery 

21. 

records. 

O.J 

7. 

Process. 

2:j. 

8. 

Formalities  of  a  summons. 

24. 

9. 

Service. 

2-). 

10. 

Proof  of  service. 

11. 

Affidavit  and  order  of  publi- 
cation. 

20. 

Master's  and  referee's  reports. 

Vei'dicts. 

Abstract  of  chancery  ~^- 
ceedings. 

Injunctions. 

Ejectment. 

Quia  timet. 

Partition. 

Specilic  performance. 

Redemption. 

Foreclosure. 

Dower. 

Divorce. 

Right  of  eminent  domain. 

Proceedings  for  condemna- 
tion and  as.sessment. 

Construction  of  wills. 


§  1.  Chancory  Proceed in?s  (Jenerally.  The  naiiu"  of 
tlii.s  chapter  is  to  a  certain  extent  a  misnomer,  as  several  of 
the  subjects  discussed  are  strictly  legal  :md  not  ('(piil.tlilc 
])roceedings,  yet  in  the  compilation  of  abstracts  the  j^-enei'al 
name  of  "Chancery  Pr(jce('(lin<^s  "  has  been  ij^iven  by  exam- 
iners to  all  classes  of  actions  that  operate  directly  upon  the 
land  and  culminate;  in  ju<lL'"ments  ?';?  ;v7//.  And  while  it  is 
un(loul)t('(ily  true;  that  the  pi'opcr  tribunals  for  the  trial  of 
land  titles  are  the  comnion  law  courts,  and  that  (M|uitablo 
jurisdiction  is  only  invoiced  when  the  law  is  inadeipiate  to 
give  relief,' yet  the  comnnui  law  actions  respecting  land 
have  to  a  great  extent  been  abolished  or  supei-st'ded  by  stat- 

'  Bennett  v.  NicholH,  12  Mich.  22;  Ij«.ng  v.  niirker,  s.',  III.  m  Pioriii 
Mean*  v.   Ilowsirtli,   'M   .Mi.  li.    10;      v.  Kidd.r.  20  III.  :{:»!. 

(."'17) 


51S 


ABSTRACTS    OF   TITLE. 


utory  remedies  of  the  same  nature  but  based  upon  equitable 
principles.'  In  many  States  no  scjiarate  chancery  jurisdic- 
tion exists  ami  the  law  courts  are  authorized  to  exercise 
chancery  powers  and  administer  equitable  relief  in  all  cases 
brou<j;ht  before  them,  and  to  adjust  the  claims  of  the  parties 
litigant  according  as  the  right  may  ap})cjir  without  refer- 
ence to  the  technical  rules  applying  to  either  jurisdiction." 
The  common  law  actions  respecting  title,  in  such  courts,  are 
regarded  rather  as  equitable  than  legal  proceedings,  ami 
equitable  defenses  are  permitted,  while  the  judgment  of  the 
court  ada]>ts  itself  to  equitable  methods  in  dis])osing  of  the 
rights  of  the  parties."  The  term  emplo3^ed  to  designate  this 
chapter  will  not  mislead,  therefore,  and  for  the  purpose  of 
distinguishing  between  actions  purely  legal  and  followed  by 
judgment  in  personam,  is,  perhaj^s,  as   good  as  could   be 


'  The  State  of  New  York,  in  1848, 
passed  an  act  "  to  simplify  and 
abridge  tlie  practice,  pleadings  and 
proceedings"  of  the  courts  of  that 
State,  whereby  the  then  existing 
forms  of  actions  and  pleadings  in 
common  law  cases  were  abolished; 
the  distinction  between  legal  and 
equitable  remedies  abrogated;  and 
a  uniform  course  of  proceeding,  in 
all  cases,  was  established.  The 
State  of  Ohio  some  years  later  fol- 
lowed the  example  of  New  York .  and 
the  codes  thus  formulated  by  these 
two  States,  have  been  made  the 
basis  of  the  procedure  of  every 
State  and  territory  of  the  Union, 
with  only  a  few  exceptions.  In 
some  half  dozen  States  the  ancient 
practice  is  still  retained,  but  in  a 
greatly  modified  form,  and  the  dis- 
tinction between  legal  and  equi- 
table remedies  preserved,  though 
both  remedies  are  admmistered  in 
the  same  court. 

''Troostr.  Davis,  31  Ind.  34.  When 
the  legal  title  alone  is  in  question 
it  needs  no  support  from  equities, 


but  stands  impregnable  in  its  own 
strength  and  is  presumed  to  em- 
brace all  equities.  Proof  of  equi- 
ties becomes  important  when  the 
legal  title  is  defective,  or  when  it 
is  proposed  to  assail  it:  Shaw  v. 
Chambers,  16  Reporter,  50. 

*The  codes  of  procedure  wliicli 
abolish  all  distinction  between  legal 
and  equitable  remedies,  endeavor 
to  blend  them  into  one  system, 
combining,  or  professing  to  com- 
bine, the  principles  peculiar  to 
each,  but  though  the  only  form  of 
a  suit  recognized  by  them  is  that 
known  as  the  "  civil  action,"  the 
establislied  principles  pertaining  to 
each  branch  of  the  law  are  still  in- 
tact and  of  binding  force  and  effi- 
cacy. The  only  true  difference  be- 
tween the  new  and  old  systems  is 
in  the  practical  application  of  those 
principles:  Rubens  v.  Joel,  3  Kern. 
488:  Scovill  r.  Griffith.  2  Kern.  51.1; 
Rozierz  v.  Van  Dam,  16  Iowa.  ITl. 
See  Mej-ers  v.  Rasback,  4  How. 
(N^  Y.)  83;  Giles  v.  Lyon,  4  Com. 
^N.  Y.)  600. 


CnAXCERY    RECORDS    AXD    rROCEEniNGS.  510 

selected.  The  chapter  will,  therefore,  be  devoted  to  a  gen- 
eral review  of  all  legal  actions  res]iecting  land  which  par- 
take  of  an  equitable  nature  and  to  such  actions  as  are 
strictly  with  the  equity  jurisdiction. 

§  2.  Authority  and  Jurisdittiou  of  Chancery  Courts. 
The  primary  object  of  courts  of  equity,  is,  to  supjil}'  defects 
in  the  administration  of  justice  in  the  ordinary  courts, 
assuming  the  power  of  enforcing  the  principles  upon  which 
the  ordinary  courts  decide,  when  the  jiowers  of  those  courts 
or  their  modes  of  proceeding  are  insulhcient  for  the  \mv- 
pose;  to  prevent  these  principles,  wlien  enforceil  by  the 
ordinary  courts,  from  becoming  (contrary  to  the  pur})ose  of 
their  original  establishment)  instruments  of  injustice;  and 
to  decide  on  principles  of  universal  justice,  when  the  inter- 
ference of  a  court  of  judicature  is  necessary  to  prevent  a 
wrong,  and  the  positive  law  is  silent.'  Courts  of  e(juity 
also  administer  to  the  ends  of  justice  by  removing  impedi- 
ments to  the  fair  decision  of  a  question  in  other  courts,  by 
providing  for  the  safety  of  proj)erty  in  dispute  pending  a 
litigation,'  by  restraining  the  assertion  of  doubtful  rights  in 
a  manner  productive  of  irrejiarable  damage,'  by  preventing 
injury  to  a  third  ])erson  from  the  doubtful  title  of  others,' 
and  by  putting  a  bound  to  vexatious  and  oppressive  litiga- 
tion, and  preventing  unnecessary  multiplicity  of  suits;'  and 
without  pronouncing  any  judgment  on  the  subject,  by  com- 
pelling a  discovery  which  may  enable  other  courts  to  give 
their  judgment;  and  by  preserving  testimony,  when  in 
danger  of  being  lost,  before  the  matter  to  which  it  relates 
can  be  made  the  subject  of  judicial  investigation.' 

'  Whitney  r.  R^jbcrts.  22  111.  381;  'Scott   r.  Mmrc,   8   St-nm.    (III.) 

Long  V.  Harktr,  85  111.  4:51;  Bennett  300;  Imp.  Tin'  In.s.  Ct).  v.  (Jiinninj;. 

V.   Nicholb,  12   Mich.  22;  Mema  v.  81  111.  2:JC;  Beatty  v.  Dixon.  M  Cal. 

Howarth,  34  Mich.  19.  OIU;  ThinI  Ave.  II.  H.  Co.  r.  Mayor. 

»McIntyre  i'.  Storey,  80  111.  127.  eU..  M  N.  Y.  IM. 

'Bennett   v.    McFadden.  01    111.  «Mit.    1*1.  3;     1     Smith's    Ihan. 

834:  Prim  v.  ItiilKjt«'au .  50  Mo.  4i)7.  i»ruc.  2. 

♦Scott  V.    M(j<jre,    3   Scam.    (111.) 
300. 


52U  ADSTKAUTS    OF   TITLE. 

§  3.     Authority  and  Jurisdiction  of  Probate    Courts. 

The  }irob:ito  courts  of  the  Uiiitecl  States  are  courts  of  special 
ami  limited  jurisdiction,  deriving  all  their  authority  from  the 
siatute,'  anil  possessint^  original  and  frequently  exclusive 
jurisdiction'  in  all  matters  ])ertaining  to  the  settlement  of 
estates  of  deceased  ))ersons,  which  jurisdiction  continues  so 
long  as  there  is  any  occasion  for  its  exercise,  and  until  there 
has  been  a  full  and  com))lete  settlement  and  distribution.' 
They  ]iossess,  so  far  as  may  be  necessary,  a  poi-tion  of  the 
equitable  |)owers  exercised  by  a  court  of  chancery/  and  are 
not  conlined  to  the  technical  rules  of  common  law  in  op})o- 
sition  to  established  chancery  principles.'  They  are  ordi- 
narily courts  of  record  upon  the  administration  of  estates, 
or  other  matters  over  which  they  possess  a  general  jurisdic- 
tion, and  as  liberal  intendments  are,  or  should  be,  made  in 
their  favor,  as  are  extended  to  the  proceedings  of  the  circuit 
court."  Their  jurisdiction  in  no  State  extends  to  controver- 
sies respecting  the  title  to  land,  but  the  peculiar  class  of 
matters  entrusted  to  their  charge  makes  their  judgments 
and  decrees  of  controlling  efficacy  in  the  decision  of  Cjues- 
tions  relative  to  title,  which  may  arise  in  other  courts. 

§  4.    Actions  and  Proceedings  to  be  Noticed.     The  only 
proceedings  that   call  for  special  notice  on  the  part  of  the 

'  Ilendrick  v.   Cleveland,    2  Vt.  retaining  its  ancillary  jurisdiction 

392;  Propst  t'.  Meadows,  13  III.  157.  to  tlie  same  extent  over  matters  in 

'  A  court  of  chancery   may,    in  the  probate  court,   which   it  has 

the  exercise  of  its  general  jurisdic-  over    those   in  the    common    law 

tion  take  upon  itself  the  administra-  courts:     Adams  v.  Adams,  22   Vt. 

tion  of  estates,  and  thus,  in  a  par-  50;  Heustis  v.  Jolmson,  84   111.    61. 

ticular  case,  supersede  the  juris-  *  Keeler  v.  Keeler,  39  Vt.  550. 

diction  of  the  probate  court:    Free-  ''Bennett    v.   Whitman,    22111. 

land  V.  Dazey,  25  111.  294;  but  the  448;  Appeal  of  Schaeffner,  41  Wis. 

interference  of  a  court  of  chancery  260;  Brooks  v.   Chappel,    34  Wis. 

in  the  settlement  of  estates  is  usu-  405. 

ally  confined  within  the  narrowest  'Robinson  v.  Swift,  3  Vt.  283. 

limits,   and    has    gone    upon    the  *  Grignon  v.  Astor,  2  How.    (U. 

ground  merely  of  aiding  tjie  juris-  S.)  319:  Propst  v.  Meadows,   13  111. 

diction  of    the    probate    court   in  157;    Moreland    v.    Lawrence,    23 

those  points  only  wherein  its  func-  Minn.   84;   Barker    r.    Barker,    14 

tions  and  powers  are  inadequate  Wis.  131 ;  Ostrom  v.  Curtis,  1  Cush. 

to  the  purposes  of  perfect  justice,  460. 


CHANCERY    RECORDS    AND    rROCEEDINGS.  521 

examiner,  are  such  as  relate  to  the  recovery  of  specific  real 
pro])erty,  or  the  possession  thereof,  called  ejectment;'  actions 
and  proceedings  for  partition;'  foreclosure  of  liens'  and 
mortgages;  bills  to  quiet  title;  actions  brought  to  enforce 
the  specific  performance  of  land  contracts;  and  incidentally 
such  bills,  actions,  or  proceedings  as  from  their  nature  ma}' 
o])erate  as  lis  j^cndcns.  All  the  proceedings  specially  enu- 
merated, whether  pending  or  closed  by  decree,  should  be  care- 
fully scrutinized  and  stated  with  a  reasonable  degree  of 
detail.  The  decree  entered  in  these  matters,  when  followed 
by  deed,  is  the  foundation  for  such  deed,  and  of  equal  dig- 
nity with  it,  while  the  anterior  proceedings  go  to  establish 
the  validity  of  the  decree.  In  addition  to  those  matters  of 
exclusive  cognizance  in  the  circuit  court,  the  examiner  will 
also  show  all  proceedings  in  thecounty  (probate)  courts  that 
incidentall}'  affect  title,  by  reason  of  the  relation  of  the 
l)arties  to  the  subject-matter.  In  this  way  matters  relating 
to  adoption,  guardianshi}),  etc.,  Avill  freipiently  apjiear,  as 
well  as  assignments  of  dower,  homesteads,  etc. 

§  5.  Jurisdiction  the  Groat  F^ssoiitial.  The  validity  of 
all  decrees,  as  well  as  sales  and  cuuveyaneos  wiiich  may  re- 
sult from  them,  depends  on  the  jurisdiction  of  the  court,* 
and  this  has  reference  both  to  the  parties  and  the  suliject- 
matter.  lioih  of  these  particulars  must  satisfactorily  ap- 
pear in  the  abstract,  and  are  shown  in  the  one  case  by  a 
statement  of  the  return  of  the  summons,  the  method  of  serv- 
ice Ijeing  also  given  where  greater  certainty  is  desired,  and 
in  the  other  by  a  synopsis  of  the  bill,  answer,  and  other  plead- 

'  Ejectment    Is   a    common  law  jurisdiction  ju«  well  as  law  court.s: 

reme<ly,  l»iit   the  sUitutory   action  Hess  r.  Vo«s,  52  111.  470. 

6ul«titufce<l    in    many     Stat<>s      w  *  A  suit  to  enforce  a   niirhanic's 

e<|uitaljle  in  its  nature,  and  in  aomo  lien  is  substantially  a  liianccry  im>- 

Stat^-s  the  action  is  a  suljstitute  for  cecdin^,  and    is  ko^'T"*''!  ''y   the 

a  Ifiil  incfjuity:  Tyltr  Ej«'<t.  TiS.  chancery    imKticc:     McUraw     t'. 

'Partition  is  also  u  common  law  Hayard,  00  III.  11(1. 

acticm:  H<)j)kins  r.    Mt-dNy,  U7  III.  ♦  Wtidn-sum     v.     Naumaiin.    0"J 

402;   but  p.irtakfs   of  many   «v|ui-  How.  (N.  Y.ll'r.  iinO;  L"ann)lH.>ll  l'. 

table    qualtlieM,    and     etjuity    has  McCahan,  41  111.  45. 


522  ABSTRACTS    OF    TITLE. 

inirs.  Tlic  decree  in  all  instances  must  conform  to  the  pro- 
cess and  allo^-ations,  i.  e.,  to  the  i)arties  intheaction  and  the 
matter  recited  in  the  pleadings.'  It  will  tluM-el'ore  be  seen 
that  a  correct  rendering  of  the  commencement  of  the  action; 
statement  of  facts  constituting  the  subject-matter;  and  a 
full  presentation  of  the  adjudication  made  thereon,  are  the 
only  matters  of  prime  consideration  on  the  part  of  the 
examiner,  and  when  these  several  matters  show  ap])arent 
regularity  and  a  just  correspondence  in  all  their  parts,  correct 
and  satisfactory  opinions  may  be  predicated  upon  them,  even 
though  minor  details  may  have  been  neglected,  and  positive 
error  is  shown  by  the  record. 

§  6.  Notice  Afforded  by  Chancery  Records.  It  is  a 
fundamental  rule  in  equity  that  purchasers  are  directly 
atfected  by  every  matter  or  circumstance  concerning  the 
title  to  the  property  they  take,  which  affirmatively  apj^ears 
from  the  pleadings  or  decrees  of  courts  of  competent  juris- 
diction, in  actions  relating  to  such  property,  whether  such 
purchasers  have  actual  notice  or  not."  It  is  the  application 
of  this  rule  Mdiich  renders  necessary  a  searching  investiga- 
tion of  the  court  rolls  whenever  real  property  is  sold,  for 
every  man  is  presumed  to  be  cognizant  of  what  transpires 
in  the  courts  of  justice,  and  the  law  will  charge  him  with 
actual  notice  of  whatever  there  occurs,  which  affects  the 
merits  of  the  title  he  would  take.'  This  rule,  which  has 
always  been  considered  a  hard  one,*  is  not  a  favorite  with 
the  courts,  who  are  ever  inclined  to  limit  its  application, 
and  it  will  not  be  extended  to  embrace  collateral  matters, 
or  matters  not  specifically  mentioned  in  the  bill  or  decree." 

'  Slocum  V.  Slocum,  9  111.   App.  plied  in  actions  at  law:  See,  Jack- 

418.     Thus,   one  case  can  not  be  son  v.  Tuttle,  9  Cow.    (N.  Y.)  233; 

alleged  and  another  proved:  Mere-  Howard  r.  Kennedy,  4  Ala.  592; 

dithr.  Little,  6  Lea  (Tenn.),  521;  Bennett  r.  Williams,  5  Ohio,  461. 
Parkhurst  v.  Race,  100  111.  207.  ^  Leitch  v.  Wells.  48  N.   Y.   585: 

2  Leitch  V.  Wells,   48  N.  Y,  585;  Fissler's  Appeal,   75    Pa.    St.   483; 

Jackson    v.   Warren,   32  111.    331;  Loomis  r.  Riley.  24  111.  307. 
Hersey  v.  Turbett,  27  Pa.  St.  418;  •*  Hayden  v.  Bucklin,    9   Paige, 

Blanchard  v.  Ware,  37   Iowa,  305;  572. 

Hunt  V.  Haven.  52  N.  H.  162.    The  *  Dugan  v.  FoUett,  100  111.  581. 

same  rule  has  been  fret^uently  ap- 


CHANCEKT   RECORDS    AND    PROCEEDINGS.  523 

"  In  the  investigation  of  titles,"  says  ]\Iulkey,  J., "  purchasers 
look  for  decrees  and  judgments  against  those  who  ajipear  of 
record  to  have  been  owners,  and  when  it  is  ascertaineil 
that  a  particular  decree  or  judgment  does  not  affect  the 
title  which  is  the  object  of  inquiry,  it  is  believ*^d  not 
to  be  customary  to  look  further;  and  to  hold  that  pur- 
chasers are  affected  ^rith  constructive  notice  of  every  fact 
relating  to  the  purchased  estate  that  may  hap]x^n  to  ajtivar 
in  some  of  the  files  of  a  case,  and  not  elsewhere,  would,  in 
our  judgment,  be  carrying  the  doctrine  of  constructive 
notice  to  a  dangerous  extent.  The  establishment  of  such  a 
rule  would  have  a  direct  tendency  to  unsettle  titles,  for  nt> 
one  could  know  of  a  certaint}'-  when  he  was  getting  a  good 
title,  without  examining  the  files  in  every  case  in  the  county 
where  the  land  lay,  and  this  would  be  wholly  impractica- 
Ijle.  AVe  hold,  therefore,  purchasers  are  not  bound  to  lo(jk 
beyond  the  judgment  or  decree,  and  the  legal  effect  it  may 
have  on  the  title  which  is  the  subject  of  incpiiry." ' 

§  7.  Process.  Equity  suits  are  commenced  by  the  filing 
of  a  bill  or  petition  in  the  office  of  the  clerk  of  the  court  in 
which  the  action  is  brought,  which  bill  contains  a  state- 
ment of  the  facts  constituting  thecomplainant'sclaiin.aiul  a 
prayer  for  such  relief  as  he  may  deem  himsi'lf  entitled 
to.  Upon  the  filing  of  this  bill  or  petition  process  issues  to 
compel  the  appearance  of  the  defendants.  This  is  the  an- 
cient chancery  procedure,  and  ])roeess  issued  before  the  filing 
of  the  bill,  or  service  made  prior  thereto,  is  a  nullity.' 
The  codes  suV)stitute  a  new  pr<x;edure,  by  whii  h  the  issuance 
of  summons  is  made,  in  ordinary  cases,  the  commencement 
of  the  action,'  but  tlie  law  governing  the  service  of  i)ix>cess 

'  Du^,Mn  r,  Follett,    100   III.    r,Hl.  'Story's  R.|.  PI.  g.7:  Ilarton'H Suit 

TliiH  rule  in  in  consonance  withtlie  in  Kq.,  39;  Iltnlgun  v.  tJuttcry,    r>H 

gonenU  <l«KtrinL'  tlmt  one   hiiyinj^  III.  -IHI. 

land,  r>f  uliiih  tin-  record  titU"  ih  in  'TIjIh  is  the  |(r<M<>liir<'Mf  tin-New 

the  grantor,  in  not  Ixninil  lij'    (Hpii-  York  eo.le  and  uU  Hyhlenus  l)iuw*d 

t'u-H   Ht.'ited    in  fleeds     tnieoniiecti-d  tliereuii. 
with    the   chain    of   title,    and    of 
%vhie|i    he   iH   not    inforiiie<l.     Seo 
Odle  t'.  Udle,  76  Mo.  '2VJ. 


524  ABSTRACTS    OF    TITLE. 

is  substantially  the  same,  and  the  court  in  either  case  de- 
rives its  jurisdiction  only  from  ii  full  and  technical  compliance 
Avitli  the  law.  A  discussion  of  practice  is  foreign  to  the 
jiurposes  of  this  work,  and  in  speaking  of  these  matters 
reference  can  only  be  made  to  the  commonly  accejited  prin- 
ciples which  are  recognized  l)y  all  courts  and  are  ap]>li- 
cable  to  all  systems  of  practice,  trusting  that  the  points 
given  will  suggest  others  depending  upon  local  rules  and 
decisions.  The  process  of  a  court  has  vitality,  and  may 
be  enforced  anywhere  within  its  jurisdiction,  l)ut  beyond 
that  it  is  of  no  effect,  and  service  beyond  its  jurisdic- 
tion confers  no  rights  over  the  person  of  the  defendant.* 
§  8.  Formalities  of  a  Summons.  It  is  not  necessary  in 
the  abstract  of  court  records  to  set  out  minutely  all  the 
papers  and  files,  and  as  a  rule  the  practical  purposes  of  the 
abstract  can  be  accomplished  by  references  and  partial 
statements.  The  summons,  however,  is  vital,  and  unless 
there  has  been  an  appearance,  the  formal  requisites  are  juris- 
dictional." When  the  summons,  as  under  the  old  chancery 
practice,  issues  out  of  the  court  where  the  bill  has  been  filed, 
it  must  be  with  proper  venue,'  for  a  defendant  has  a  right 
to  know  when  and  where  he  is  required  to  appear,  and 
when  the  writ  fails  to  furnish  such  information,  it  is  void.* 
It  must  run  in  the  name  of  the  "  People  "  or  the  "  State,"  * 
or  it  is  void,"  and  must  be  addressed  to  the  sheriff  of  the 

'Isett  r.  Stuart,  80  111.404.     In  county  wherein  the  court  is  acting: 

some  of  the  States  the  statute  pro-  Van  Dusen  v.  People,  78  111.  645. 
vides  for  actual  personal  service  ••Orendorff   v.  Stanberry,  20  III. 

without  the  State,  and  permits  the  89.      A  code  summons  requirmg 

notice  thereby  given  to  supersede  the  defendant  to  serve  a  copy  of 

the  necessity  of  publication.  his  answer  upon  "  the  subscriber," 

5  Orendoi-ff  v.  Stanberry,   20  111.  the  plaintifr's  attorney,  at  a  place 

89;  Miller  v.  Handy,   40  111.   448;  designated,  is  sufficiently   certain 

Garland    v.   Britton,    12    111.   232;  under  the  code,  and  confers  jmis- 

Besemer  r.  The  People,  15  111.  43!).  diction:  Hotchkiss  r.  Cutting,   14 

3  Orendorff  v.  Stanberry,  20  111.  Minn.  537. 
89.     And   this  rule  has  not  been  'Curry  v.   Hinman,  11   111.   420. 

changed  by  the  codes  :    Blanchard  The    style    is    generally   constitu- 

r.  Stnait,   8  How.  (N.  Y.)  84.     The  tional. 

force  and  effect  of  a  venue  in  a  *  Ferris  v.  Crow,  5  Gilm.  (111.)  96. 

judicial  writing  is  to  indicate  the 


CHANCERY    RECORDS    AND    PROCEEDINGS.  625 

county  in  which  the  defendant  resides  if  he  be  a  resident  of 
the  State.'  It  must  correctly  describe  the  parties  to  the 
suit,'  and,  when  required  by  statute,  the  cause  for  which  it 
is  brought.'  When  issuing  from  a  court  it  must  be  tested 
in  the  name  of  the  clerk'  or  presiding  judge,'  and  must  bear 
teste  of  the  day  on  which  it  is  issued.'  By  some  of  the 
codes,  the  summons  may  be  issued  by  an  attorney  of  the 
court,  and  need  not  be  signed  by  the  clerk  or  judge,  but 
must  be  subscribed  by  the  attorney  who  causes  same  to 
issue.^  "When  regarded  as  the  direct  mandate  of  the  court, 
a  seal  is  indispensable  to  its  validity,*  but  under  the  code 
system  this  is  unnecessary." 

§  9.  Service.  To  bind  a  party  by  a  judicial  sentence 
he  must  be  a  party  to  the  proceeding,  and  must  have  either 
actual  or  constructive  notice  thereof,'"  or  enter  his  a])pear- 
ance."  These  mattersare  jurisdictional,  and  where  the  serv- 
ice of  the  summons  is  insufficient  to  confer  jurisdiction,  the 
judgment  or  decree  as  to  the  defendants  is  a  nullity,"  and 
open  to  attack  in  all  collateral  proceedings."  The  return 
of  the  officer  serving  the  process  must  show  strict  compli- 
ance Avith  the  statute,  before  the  court  can  obtain  jurisdic- 

'  A  summons  issued  by  the  clerk  'Brown  r.    Barker,    M  111.  307; 

of  one  coimty,   addressed  to  the  Howerter  r.  Kelly,  23  Mich.  337. 
sheriff    of    another  county,  com-  •  Brown  r.  Barker,  15  111.  307. 

manding  him  to  summon  a  defend-  ■■  See  Howard's  N.  Y.  Codt-  (1S59), 

ant    in  his  county  to  appear   at  162. 

Lincoln,   in  said  county,  is  void:  '  Besemer  v.    rc-oplf.  1."")  III.  439; 

Gill  V.  Ilohlit,  23  111.  473,  and  see  Morrison  v.  Silvt"rl>ur^,'h.l3  III.  T)."")!. 
Kennedy  r.  People,  15  111.418.    The         'For  a  hrii-f  pi-riod  a  U.  S.  Kev. 

N.  Y.  code  summons  is  addressed  stamp  was  re<iuired  on  all  prt)ce.ss, 

simply  to  the  defendant.  hut  this  law  wjis  repealed  March  2, 

Uiicliardson  v.  Thompson,  41  III.  18(57;  see  14  U.  S.  Stat,  at  Large, 

202;   Rogers  r.  Green,  33 Tex.  601.  475. 

»McDermidr.  Russell,  41  III.  489;  '"Borders  v.  Murphy,   78  111.  81; 

King  V.  Blo<xl,  41  Cal.  314.  Ea.st»rly  v.  Goodwin,  35  Conn.  273. 

♦Norton   v.    Dow,   5   Gilm.    459;  "  Barkir  r.  Ins.  (  o.,  24  Wis.  «30. 

Owtly  V.  Driv.r.  45  Ala.  230;   Wil-  "Hut.-ford  v.  0'l\.nn.-r.  57  111.  72. 

Bon  r,  Owen,  45  iUu.  451.  "lluy  wood  u.  CoUiiiH,  00  III.  328. 


52G  ABSTRACTS    OF    TITLE. 

tion  of  the  person,'  ami  tliis  has  reference  botli  to  the  time, 
the  manner,  and  the  person  on  whom  the  service  was 
made.'  When  personal  service  can  not  be  made,  by  reason  of 
the  absence  of  the  defendant,  or  because  he  can  not  be  found, 
a  substituted  service  is  prescribed  by  statute,  but  in  making 
this  service,  as  well  as  in  case  of  constructive  service  by 
publication,  the  requirements  of  the  statute  must  all  be 
strictly  complied  with,  and  this  must  atfirmatively  appear 
on  the  record.'  Service,  or  constructive  notice,  by  pub- 
lication, was  only  obtainable  formerly  on  the  return,  of 
]irocess  non  est  inventus,  and  such  is  still  the  rule  in  some 
States,  but  ordinarily,  where  an  affidavit  of  non-residence 
has  been  filed  a  constructive  service  by  advertisement  may 
be  obtained.* 

In  all  cases  of  constructive  service  the  statute  must  be 
strictly  pursued,  and  as  the  affidavit  of  non-residence  consti- 
tutes the  basis  of  an  order  of  publication,  whenever  such 
order  is  required,  it  is  essential  that  such  affidavit  should 
appear  of  record,'  and  as  a  matter  of  course  be  properly 
exhibited  in  the  abstract  in  connection  with  the  order  of 
publication,  notice,  and  publisher's  proof  of  publication. 

§  10.  Proof  of  Service.  The  service  of  a  summons  is  or- 
dinarily proved  by  the  return  of  the  sheriff  or  other  ])erson 

'  Cost  V.  Eose,  17  III.  276;   Par-      Tibbsu.  Allen,  27  111.  119:  Coons  r. 

don  V.  Dwire,  23  111.  572;  People  v.      Throckmorton,  25  Ark.  GO. 

Bemal,  43  Cal.  885.  *  Bardsley    v.    Hines,    33   Iowa, 

157;  Merrill  v.  Montgomery,  25 
Mich.  73;  Byrne  v.  Roberts,  31 
Iowa,  319;  Coons  u.  Throckmorton, 
25  Ark.  60;  Millett  v.  Pease,  31 
111.  377.  In  this  case,  while  hold- 
ing the  affidavit  to  be  the  basis  of 
the  order,  it  is  yet  held,  that  where 


''  Botsford  V.  O'Conner,  57  111. 
Hochlander  v.  Hochlander,  73  111 
618;  Mack  v.  Brown,  73  111.  295 
Rankin  v.  Dulaney,  43  Miss.  197 
York  V.  Crawford,  42  Miss.  508 
Hendley  v.  Baccus,  32  Tex.  328 
Vandiver  v.  Roberts,  4  W.  Va.  493 
Melvin  v.  Clark,  45  Ala.  285.  the  record  shows  a  notice  by  p  .b- 

^Boyland  r.  Boyland,  18  111.  551;  lication,  which  recites  the  fact 
MillerV  Mills,  29  111.  431;  Wells  v  that  an  affidavit  was  duly  filed, 
Stumph,  88  111.  56;  "Williams  v.  but  does  not  appear  of  record,  the 
Downes,  30  Tex.  51;  Brownfield  v.  court  will  presume  that  the  affida- 
Dyer,  7  Bush  (Ky.),  505;  Mullins  v.  vit  was  duly  filed;  and  see  Tomp- 
Sparks,  43  Miss.  129.  kins  v.  Wiltberger,  55  111.  385. 

*  Millett   V.    Pease,    31  111.   377; 


CHANCERY    RECORDS    AND    PROCEEDINGS. 


527 


serving  it,'  or  by  the  admission  of  the  jierson  so  served,'  Imt 
in  all  cases  where  the  record  shows  an  appearance  of  the 
defendant,  this  becomes  a  matter  of  minor  importance,  for  a 
general  appearance  is  an  admission  on  the  ]>art  of  the  defend- 
ant that  he  has  been  reguhirly  brought  into  court,  and  sub- 
jects him  to  the  jurisdiction  of  same.  In  all  such  cases  it 
would  seem  that  a  passing  reference  to  the  issuance  and 
service  of  summons  would  be  sufficient,  though  many  at- 
torneys require  a  synopsis  or  full  transcription  of  the  offi- 
cer's return,  particularly  in  the  case  of  infants,  lunatics,  and 
pereons  under  disability,  when  the  ajipearance  is  by  guard- 
ian. But  where  a  plaintiff  undertakes  to  obtain  a  judg- 
ment or  decree  against  a  defendant,  without  any  appear- 
ance by  the  latter,  either  in  person  or  by  attorney,  he  is 
required  at  his  ]>eril  to  bring  such  defendant  within  the 
jurisdiction  of  the  tribunal  in  which  he  is  proceeding,  or 
his  proceedings  will  be  set  aside  as  irregular,  and  totally 
defective  and  void.*  In  the  case  of  joint  dt't'endants  this 
matter  is  particularly  important,  for,  although  the  plaintitF 
may  ordinarily  proceed  against  the  defendants  served,  no 


'  No  person  can  execute  a  process 
in  his  own  favor  :  Snydacker  v. 
Browni,  51  111.  STjl. 

*  An  admission  of  service  is  not 
very  satLsfactory  as  evidence. 
Tlie  court  tak(«  judicial  notice  of 
the  signatures  of  its  olRcers  but  is 
not  presumed  to  know  the  signa- 
ture of  a  party  defendant,  who 
has  not  appeare<l  :  Litchfield  v. 
Burwell,  5   How.  (X.  Y.)341. 

'Dix  r.  Palmer,  5  How.  (N.  Y.) 
233;  Wcl.b  r.  Mott,  6  How.  (N.  Y.) 
439;  Bark.-r  r.  Ins.  Co.,  24  Wis. 
63<);  BustJimt-te  v.  Fiescher,  48 
Miss.  172;  Bowin  r.  HntluTJin,  44 
Ala.  27H;  Li  lea  r.  Wfxxls,  M  Tex. 
410. 

♦  Williams     v.     Valkenhurg,     1(J 


How.  (N.  Y.)  144;  Kol.erts  v. 
Stowers,  7  Bush  (Ky.).  29");  Grant- 
ern  r.  Rosecierrance,  27  Wis.  4K8. 
A  distinction  is  sometinii»s  made 
between  a  total  want  of  service  of 
j)n)cess,  and  a  defi-ctive  service,  as 
t<i  their  elfwt  in  judicial  jiroceed- 
ings.  In  the  one  case  a  judgment 
or  decree  is  held  to  be  coram  non 
judice  and  void.  In  the  otlu-r,  the 
defective  service  givt-s  tin-  tlefend- 
ant  actual  noticf  of  the  pHKUf*!- 
ings  against  liim,  and  tlu*  judg- 
ment or  dtKTiM',  altliouglnTron«>oUH, 
is  valid  imtil  reversed  by  a  dirt**'! 
proccciling  in  an  iip|M'll:it4>  juris- 
diction; and  ftiH  valiilily  fan  not 
\h'  c,olliit<Tfdly  callf<l  in  (lUi-Htioii: 
llarriuiiton  v.  Wolford,  4(1  Mi-vs.  .:i. 


52S  AUSTRACTS    OF    TITLK. 

valid  judrrmcnt  can  be  rendered  against  those  not  served,  ex- 
ce})t  that  sei'vice  upon  one  member  of  a  firm  has,  in  some 
instances,  been  held  to  give  the  court  jurisdiction  over  all 
the  members  in  an  action  against  the  firm.'  "Whenever, 
therefore,  tlie  record  shows  no  appearance  it  is  advisable 
that  all  matters  relating  to  service  be  shown  minutely  and 
in  detail.  In  case  of  personal  service,  show  the  return 
brielly,  but  always  display  enough  to  show  the  jurisdic- 
tional essentials;  who  were  served,  when,  where,  etc.  In 
case  of  substituted  service  show  the  return  entire;  that  is, 
a  literal  transcription.  If  the  service  is  elfected  by  notice 
and  publication,  show  a  synopsis  of  the  notice  and  proof  of 
])ul)lication.'  The  advertisement  in  the  latter  case  performs 
the  same  olRce  as  process,^  and  it  is  not  enough  that  the  de- 
cree recites  that  the  defendant  has  been  duly  served,  or  that 
he  has  been  regularly  notified;  the  record  should  show 
process  or  notice  duly  served  or  published  and  a  decree  ^;;v) 
co7\fesso,  is  rendered  erroneous  and  invalid  when  these  par- 
ticulars are  wanting.*  A  decree  rendered  upon  the  con- 
structive notice  afforded  by  publication  is  not  regarded  in 
many  States  as  final  or  conclusive  upon  the  subject  pre- 
sented, for  considerable  time  after  its  rendition,  and  is  lia- 
ble to  be  vacated  in  the  interests  of  justice,  where  applica- 
tion is  made  in  apt  time,  and  of  these  facts  purchasers  or 

'  Anderson    v.    Amette,  27  La.  ■•  Reddick  v.  State  Bconk,  27  111. 

Ann.  237.   Yet  ser\uce  upon  an  al-  145.     This  doctrine  has  been  some- 

leged  partner,  the  fact  of  partner-  what  modified  by  later  decisions, 

ship  not  being  established,  does  not  and  every  reasonable  presumption 

confer  jurisdiction  upon  another  will  be  indulged  in  favor  of  the 

alleged  ptu'tner:  Nixon  v.  Downey,  jurisdiction  of  a  court  whose   de- 

42  Iowa,  78.  crees  recite  due  process  and  service 

^  Proof  of  the  publication  of  the  and  such  recitals  ajre  generally  lield 

summons     for     "six     successive  to  be  prma  /a ci'e  evidence  of  the 

weeks "  has  been  held  insufficient  jurisdictional    facts:     Turner    v. 

to  show  a  publication  "once  each  Jenkins,  79  111.   228;  Tompkins  v. 

week"  for  the  period  named:    See  Wiltberger,  56  111.  385.     Mere  cler- 

Godfrey    v.   Valentine,   39    Minn.  ical  omissions,  provided  sufficient 

3o6.  is  shown  to  confer  jurisdiction,  are 

'Randall  v.   Songer,   16  111.  27;  usualh' of  little  consequence:  Car- 

Qiurch  V.  Fumiss,  64  N.  C.  659.  ter  v.  Rodewold,  108  111.  351. 


CHANCERY    RECORDS    AXD    PROCEEDINGS.  r>"Ji) 

others  dealing  with  the  title  to  land   are   bound  to  take 
notice.' 

§  11.  AfTidavit  and  Order  of  Piildication.  The  statute 
authorizing  constructive  service  by  publication,  in  case  of 
non-resident  or  absent  parties,  requires  certain  facts  to  be 
presented  by  afTidavit  to  the  court  in  which  the  action  is 
pending,  Avhereupon,  if  such  presentation  is  satisfactory  to 
the  court,  an  order  is  made  for  the  publication  of  the  sum- 
mons or  notice  to  appear,  which  not  only  prescribes  the 
period  but  designates  the  paper  in  which  the  publication  is 
to  be  made,  while  if  the  residence  of  the  defendant  l)e  known 
such  order  further  provides  for  an  additional  notice  through 
the  mail.  The  service  is  deemed  complete  at  the  expiration 
of  the  time  prescribed  by  the  order  of  publication,  and  the 
proof  is  afforded  by  the  affidavit  or  certificate  of  the  printer, 
and  an  affidavit  of  deposit  in  the  post-otfice,  if  such  deposit 
has  been  made.  These  preliminaries,  tliougli  often  over- 
looked when  compiling  an  abstract,  are  as  important  as  any 
step  in  the  action  and  upon  their  due  performance  the  va- 
lidity of  the  subsequent  proceedings  rests.  It  is  not  suflicicnt 
to  show  merely  the  affidavit  of  publication,  for,  although 
that  fact  is  an  important  ingredient  of  the  service,  it  is  com- 
])aratively  of  no  force  or  ell'ect  unless  connected  with  the 
preliminary  steps  which  occasioned  it.  Publication  of  ;i 
summons  in  a  news]iaj)er  is  not  service  of  the  summons,  noi- 
is  an  a1Ii(hivit  of  such  publication  ])roof  of  service.  To  bcof 
any  avail  the  publication  must  have  l)een  made  in  a  ])ap('r 
designated  In'  the  order  of  the  court  or  judg(!  and  f(»r  the 
])criod  ])rescril)ed  by  such  order.  The  tci-ins  of  such  order 
must,  therefore,  be  connected  with  the  alliilavit,  (trthc  proof 
will  amount  to  nothing.'  As  the  ju-intei-  is  not  siipposc(l  to 
know  anything  of  tiie  onh.'r,  and  is  not  called  upon  eveji  to 
refer  to  it  in  his  ailidavit,  it  becomes  necessary  in  making 
up  the  abstract  to  include  tlie  substance  <if  tlie  allidavii  of 

'  Soutlu-m  Bank   r.  lluiiiplirfys,  'fJnlpin  v,   I'lii^t',   3  Sa\vy«r   (C. 

47111.227.  Ct.),  Ua. 

84 


530  ABSTRACTS    OF    TITLE. 

non-residence  and    the   order  of  the   court  made  upon  it, 
otherwise  it  will  disclose  no  proof  of  service. 

§  12.  Jlaster's  and  RofVrce's  Iteports.  Frequently  dur- 
iu"-  the  progress  of  a  cause  a  reference  is  made  to  a  master 
or  referee  to  ascertain  some  particular  fact,  or  for  a  trial  of 
the  whole  issue,  and  the  manner  in  Avhich  the  master  or 
referee  presents  his  opinion  and  the  result  of  his  incpiiries  to 
the  court,  is  either  by  a  certificate  or  report.  A  certificate 
is  a  simple  notification  of  a  fact,  or  of  an  o])ini()n,  or  a  con- 
clusion; reports  are  the  results  of  his  inquiries  with  his  iind- 
ings  or  conclusions,  and  opinions  thei-eon.'  References  are 
more  frequently  made  to  state  an  account,  or  for  other  mat- 
ters arising  out  of  commercial  transactions,  but  occasionally 
references  of  title  are  made,  and  these  will  sometimes  require 
notice  in  making  up  a  synopsis  of  chancery  proceedings. 
All  reports,  upon  which  are  founded  decrees  or  decretal 
orders,  require  confirmation.  Judicial  sales  are  frequently 
conducted  by  a  master  or  commissioner,  and  a  circumstantial 
report  of  such  sale  must  be  reported  to  and  approved  and 
confirmed  by  the  court  ordering  same,  and,  though  it  is  not 
usual  to  abstract  this  report,  where  the  decree  and  deeds  are 
shown,  some  allusion  must  be  made  to  it. 

§  13.  A\n*dicts.  The  original  chancery  practice  did  not 
contemplate  the  intervention  of  a  jury,  but  all  facts  were 
found  by  the  court.^  Issues  were  sometimes  made  up  and 
submitted  to  a  jury,  and  such  is  still  the  general  practice, 
though  under  the  codes  all  questions  of  fact  in  litigated  cases, 
whether  the  action  be  legal  or  equitable,  may  be,  and  usually 
are,  the  subject  of  jury  trials.  The  verdict  of  a  jury  on  an 
issue  which  a  court  of  equity  has  directed  them  to  try  is 
advisory  merely,'  and  is  not  conclusive  on  the  court,*  who 

'  2  Smith's  Ch.  Prac.  *161 ;  2  Barb.  not  been  materially  changed  by  the 

Ch.  Prac.  *544;  2  Dan.  Ch.  Prac.  code,  although  the  forms  of  action 

934,  have  been,  and  that  the  verdict  is 

•  Oral    examinations    were     not  only  in  aid  of  the  court,  and  does 

formerly  permitted.  not  have  the  same  effect  as  a  ver- 

s  Quinby  v.  Conlan,  104  U.  S.  420;  diet  at  law.     See  Stanley  v.  Risse, 

Rusling  i'.  Riisling,  35  N.  J.  Eq.  120;  49  Wis.  219. 

McGan   v.   O'Neil,   5    Col.   58.     It  ^  Rusling  v.  Rusling,  35  N.  J.  Efj. 

would  seem  that  this  principle  has  120;  Mai-shall  v.  Mai'shall,    18  W. 


CHANCERY    RECORDS    A^'D    PR(X!EEDINGS.  531 

may  reverse  the  verdict  and  render  a  decree  op])oscd  to  the 
tindings  of  the  jury.'  As  a  material  point,  however,  when 
acted  upon  by  the  court,  the  verdict  shoukl  be  appropriately 
noticed,  which  can  ordinarily  be  accomplished  by  a  state- 
ment of  the  issue  presented  and  the  finding  made  thereon, 
§  IJr.  Abstract  of  Chancery  Proceedings.  In  present- 
ing minutes  of  equitable  actions  involving  title  much  nice 
discrimination  is  necessary  in  order  that  the  abstract  may 
show  a  perfect  resume  of  the  proceedings  and  all  the  mate- 
rial points  presented,  and  yet  not  become  unwieldy  or  bur- 
densomely  oppressive.  The  name  of  the  court  in  which  the 
action  is  prosecuted;  the  title  of  the  cause;  case  numl)er, 
and  date  of  commencement  of  the  action  come  first,  and  in 
the  order  indicated.  Then  follows  a  brief  statement  of  the 
material  parts  of  the  bill,  avoiding  all  repetition  and  suri)l us- 
age. The  subsequent  steps  next  follow  in  chronological 
sequence  doAvn  to  the  final  determination  or  decree  wliich 
is  usually  shown  in  full.  The  examples  given  in  this  sec- 
tion and  other  parts  of  this  chapter  will  fully  serve  to  illus- 
trate the  matter.  Where  the  case  is  still  undetermined  at 
the  time  of  the  search,  or  has  not  yet  come  on  to  be  heard, 
the  examiner  sets  out  only  so  much  as  appears  of  record, 
and  indicates  the  condition  of  the  cause  by  adding  the  word 
"  pending,"  thus : 

In  the  Circuit  Court  of  Cooh  County,  Illinois. 
William,  Schafer  \       Case  No.  12,510. 

vs.  y      In  Chancery. 

Henry  Brown.  )      Bill  filed  July  10,  ISTJ^,  sets 

forth  that  on  or  about  June  12, 
1S7/^,  comjjlainant  entered  into  a  contract  tcith  said  de- 
fendant to  convey  to  him  all  his  riyht,  title  and  interest  in 
and  to  certain  property  in  McTIenry  Co.,  Ills.,  and  that  said 
defendant  ayreed  to  convey  to  him  all  his  riyht,  title  and  in- 

Va.  SO."*;  Stanley  v.  Risso,  49  Wis,  Ruiitli  r.  HitlmnlHnn,  5  I'tah.  421; 

219;  Contni,  Miirvin  v.  Dutclu-r,  20  SwckI"'  v.  W.-1Ih.  7  Or.  222:  (  JIikIm-u 

Minn.  391,  r.  Whiilcy.  9  S.  C.   147;  Autitiii   r. 

'Ivyv,  Clawfum.    14   S.    C   207;  I«:iiMl..'r,  50  111,  UOb. 
Wakeflfld   V.  Bontun,  55  Cal.  109; 


532  ABSTRACTS    OF   TITLE. 

tet'cst  in  and  to  Lot  30,  in  Block  5,  in  BowmaiibS  Siihdlv'is- 
ion  of  jpart  of  the  East  half,  of  So^ith  East  quarter,  of  JVorth 
East  quarter  of  Sec.  6,  Town  39  North,  liamje  11^-,  East  of  3d 
P.  31.,  Cook  Conntij,  Ills. 

Prays,  that  said  defendant  he  adjudged  to  specifically  per- 
form the  said  contract,  and  to  convey  to  complainant  the  said 
p>re7nises,  and  to  furnish  anAhsiract  of  Title  to  said  pjroperty 
showing  clear  and pey feet  title  to  sa?ne,  and  that  defendant  he 
compelled  to  pay  to  complainant  the  dainage  he  has  sustained 
hy  his  refusal  to  perforin  said  contract,  etc. 

{Pending.) 

A  continuation  should  take  up  this  case  at  this  point,  and 
show  all  subsequent  proceedings,  thus : 

In  the  Circuit  Court  of  Cook  County,  Illinois. 
William  Shafer  \      Case  No.  12,510. 

vs.  >      In  Chancery. 

Henry  Brown.  )      The  following  proceedings  have 

heen  had  in  this  cause  since  July 
IS,  187 It..     {Chancery  record  It-'B,  page  17.) 

Aug.  18,  187 Jt,  suit  dismissed  at  complainant) s  costs  for 
want  of  prosecution)     {Costs  paid)) 

"Where  more  direct  reference  to  a  former  examination  is 
deemed  desirable  the  following  form  may  be  used  in  a  con- 
tinuation : 

In  Circuit  Court  of  Cook  County,  Ills. 
William  Shafer  )      Case  12,510. 

vs.  >      Continuing  No.  8  of  an  exami- 

Ilenry  Brown.  )  nation  nnade   hy   us    \or  hy   any 

other  person']  dated  July  18, 187 If., 
{and  hereto  attached)) 
Aug.  18,  187 Jf.,  dismissed  at  complainant^ s  costs  and  judg- 
ment.   Execution  No.  2,4-15  issued,  dated  Dec.  1,  187 J^. 

'  An  order  or  decree  dismissing  bar  to  a  subsequent  suit  for  the 
a  suit  for  want  of  prosecution,  is  same  matter:  Porter  v.  Vaughan, 
like  a  non-suit  at  law,  and  is  not  a      26  Vt.  024. 


CHAXCEKY    RECORDS    AND    rKOCEEDINGS.  533 

The  further  examples  given  in  this  chapter  of  s])ccial  pro- 
ceedings in  the  dilferent  chancery  actions,  will,  it  is  believed, 
furnish  sufficient  data  for  any  exigency  that  may  arise, 
while  the  examiner  will  have  no  dilhculty  in  aiUipting  them 
to  details  or  dilferences  of  practice  in  his  own  State.' 

§  15.  Iiijuiietious.  An  injunction  is  a  writ,  command- 
ing or  restraining  the  commission  of  some  act,  to  serve  tlie 
purposes  of  equity  and  good  conscience.  In  the  endless  vari- 
ety of  cases  where  a  phiintiff  is  entitled  to  ec]uital)le  relief, 
if  that  relief  consists  in  restraining  the  commission  or  con- 
tinuance of  some  act  of  the  defendant's,  a  court  of  ccjuity 
will  administer  it,  by  means  of  the  writ  of  injunction.'  In- 
junctions are  rarely  shown  in  abstracts  of  title,  and  when 
shown  have  reference  usually  to  transitory  matters  which 
affect  the  title  only  incidentally,  being  connected  rather  with 
the  use  and  occupation  of  the  land,  than  with  any  matter 
which  goes  to  the  title.  Temporary  injunctions  restraining 
the  sale  of  land  pending  litigation*  will  sometimes  be  found, 
as  well  as  writs  restraining  the  action  of  public  officers,  who, 
under  a  claim  of  right,  are  proceeding  illegall}'  to  im|):iir 
the  rights  or  injure  the  property  of  individuals  or  corpora- 
tions,* as  also,  to  prevent  a  multiplicity  of  suits.*  Injunc- 
tions are  granted  upon  motion  in  pursuance  of  the  statute 
and  are  usuall\'  auxiliary  to  some  legal  proceeding  then  com- 
menced or  pending,  and  may  be  shown,  when  material  to 
the  title,  either  in  connection  with  such  pending  suits,  or  as 

'  In  connection  with  tliis  chapter  le^ct'^l  to  have  already  done:  Waii- 

the  reader  is  referred  to  tlie  cliapter  gelin  r.  Goe,  50  III.  -159. 
of  this  work  entitled   "  Execution         ^Sniith  r.  Banp^.  m  111.  nOO;  Me- 

and  Judicial  Sales."  Intyre  r.  Jlcliityre,  HO  III.  rJ7;  Ktan 

»  Eden  on  Inj.  2;  Oliver's  Forms,  v.  Ash,  27  N.  J.  Et|.  !>"!.     The  writ 

52.  is  often  employed  in   disput(>s   Im-- 

*  Camp  v.  Batos,  11  Conn.  ■'»1;  Sid-  tween  the  civic  nuthorities  and  in- 

ener  v.  White,  40  Ind.  nHH;  Fi-hrle  divi«luals  relative  to  ri^'htx  of  way, 

r.  Turner,  77  Ind.  rtiKKreversinK,  :M  tKcupation   of  ntreets.  etc.:  I'etti- 

Ind.  !JO0).     An  injuncti<»n  is  a  pre-  Ikimc    v.    Ilaitiiiton,    10   WIh.    Kti; 

ventive  remedy  and  can  not  b-  in-  Kiiox     i*.     rolici-   .Jury    of   Maton 

vokj'd  t<>  eoinmand  a  party  to  im<lo  IJoup-.  27  Iji.  An.  2(i|. 
what  he  has  done  or   restrain  him  'I,ut4-sf.  Hrik'iO*.  •"*  Ilun  (N.  Y.), 

from  doing  an  act  wlii'li  he  is  al-  07. 


534:  ABSTRACTS    OF    TITLE. 

iiulependent  exhibits.  An  injunction  which  has  been  dis- 
sohx'd  docs  not  cull  for  notice.  PeriJetual  injunctions,  when 
relating  to  matters  which  directly  concern  title,  become 
permanent  muniments,  and,  of  course,  must  be  regularly 
shown  in  connection  with  the  enjoined  matter.  This  will 
be  the  case  in  respect  to  rights  of  way  appurtenant  to  land; ' 
or  of  deeds  declared  to  be  void,  when  attempted  to  be  used 
as  evidence  of  title;'  and  of  judgments  which  have  become 
invalidated  for  any  reason."  A  perpetual  injunction  to  quiet 
tithi  will  sometimes  lie  when  there  has  been  no  trial  at  law; 
as  when  the  party  having  possession  is  disturbed,  but  not 
so  dispossessed  as  to  make  it  the  subject  of  an  action  at 
law.* 

§  16.  Ejectnleut.  The  action  of  ejectment  is  said  to  have 
originated  at  some  period  uncertain  betAveen  the  years  1327 
and  1377,  and  was  at  first  a  mere  action  of  trespass  to  re- 
cover damages  from  an  intruder  who  had  usurped  posses- 
sion.' A  new  feature,  not  contemplated  by  the  original 
writ,  was  soon  introduced,"  for  the  purpose  of  enabling  the 
plaintiff  to  recover  the  term  as  well.  It  was  originally 
brought  only  by  a  lessee,  to  recover  possession  of  the  lands 
from  which  he  had  been  ousted,  and  in  its  strictly  technical 
sense  is  still  an  action  for  the  recovery  of  the  possession  of 
real  estate,  but  in  practice  it  is  more  generally  used,  both  in 
England  and  the  United  States,  to  determine  the  title  to 
lands,'  to  which  possession  attaches  itself  as  an  essential  at- 
tribute. Under  the  statute  it  possesses  Mttle  of  its  original 
features,*  while  its  general  scope  has  been  so  extended  that 

'  Truehart  v.  Price,  2  Munf.  (Va.)  been  abolished  by  the  codes,  whicli 

488.  substitute  a  statutorj'  remedy  by  or- 

*  Bushnell  i'.  Harford,  4  Johns,  der;  but  the  nature  of  the  remedy 
Ch.  302.  has  not  been  changed. 

3  Rruson  v.  Kruson,  1  Bibb  (Ky.),         '  Tyler  Eject.  34. 
184;    Brinkerhoff   v.     Lansing,     4         *  Supposed  to  be  about  the  year 

Jolms.  Ch.  69;  Gairity  v.  Russell,  40  1455. 

Conn.  450;  Dalton  v.  Lamburth,  9         'Guyer  v.  Wookey.  18  111.  536. 
Nev.  192.  *  As  originally  administered  it  de- 

*  Trustees  of  Louisville  v.  Gray,  1  pended  upon  a  series  of  legal  fic- 
Litt.  (Ky.)148.  Tlie  ti'nY  of  injunc-  tions  and  feigned  issues :  3  Black, 
tion,  as  a  provisional  remedy,  has  Com.  200. 


CIIANCEKY    KKCOKDS    AND    PROCEEDINGS.  535 

it  is  competent  to  determine  almost  every  question  that  can 
arise  in  conflicting  titles.  It  is  now  regarded  as  a  lefjil 
remedy/  to  be  prosecuted  only  by  the  real  i)arties  in  interest,' 
ha^dng  the  legal  title  to  the  land/  and  can  be  brought  only 
against  the  person  in  possession  of  the  ]nvmises,  if  they  are 
occupied,*  or  against  a  person  claiming  title,  etc.,  when  out 
of  possession,  and  when  the  premises  are  vacant  and  unoc- 
cupied. It  is  used,  not  only  to  determine  the  title  of  par- 
ties flowing  from  the  same  source,  or  to  settle  contlictinti- 
adverse  titles  derived  from  independent  sources,  but  also 
by  purchasers  under  execution  and  judicial  sale  to  obtain 
the  possession  of  the  pro]ierty  purchased  and  extinguish  the 
occupying  claimant's  rights. 

At  common  law  a  judgment  or  decree  in  ejectment  is  not 
regarded  as  conclusive  in  respect  to  the  question  of  title, 
but  as  a  recovery  of  the  possession  without  jirejudice  to 
the  right,  as  it  may  afterward  ap])ear,  even  between  the 
same  parties,'  but  wherever  the  common  law  form  of  the 
action  is  abolished,  and  same  is  prosecuted  by  the  real  [)ar- 
ties  in  interest,  in  their  own  names,  the  judgment 
is  an  estoppel  and  a  valid  bar  to  any  subsecjuent  ac- 
tion, unless  such  privilege  is  expressly  given  by  statute.' 
Where  a  recovery  is  had  against  the  occupant,  the  judg- 
ment binds  not  only  him,  but  all  persons  in  ]>rivity  of  es- 
tate or  possession  with  him,'  and  concludes  them  from 
again  litigating  the  same  title,"  but  is  n(jt  necessarily  a  bar 

'Gillett  u.  Ne^anza,  13  Wis.  472;  'MitclK-ll  v.   K..li.Tts..ii.  ir.  Ala. 

Guyer  r.  Wookt-y,  IH  111.    .WG;  Juy  412;  IIoliin-s  r.  C'aroiKlolit,  US  M,.. 

V.  fj<'nl.-Il,  25  111.  W7.  rj.'jl;  Smith  v.  SIutwimmI,  4    ('..iiii. 

'Haiiwjn   V.    Armstrong,    22    III.  270:  AtUiim  f.  Horde.   1  Hiirr.  IM. 

442;  Thoiiipwjn  v.  Scliuylt-r,  2(Jilm.  '■  l-'nt-iii.  on  JikIkIh.  ?;  21111;  famji- 

(III.)  271.  ImII  j'.  Hall.  1(5  N.  Y.  575;  and  wu, 

»Allcn  r.  Smith,  0  Hlackf.  (III. 1.)  Ciark.son    v.    Staiu-hJii'Id,    57    Mo. 

527;  Morton  v.  Greene,  2  Neb.  441.  073, 

*I\'rH<m8    in   fK)«8e«Hion   merely,  '  Hanson  v.    ArmHtn)njc,   22   III. 

an  8i'r\'antH  or  eniployfi«  of  the  par-  442;  U<Mlnei-H   r.    ll«'ll,   53  (Jjl    04; 

ty  claiminj^  ailverHely.  are  not  fn--  State  v.  OrwiK,  3-1  lowa.  112. 

rupatitx  within  the  meaning  of  the  •  Amebti   f.  L'u*lru,  4U  Cal.  325. 
hiw:    ('hini(|uy  v.  Catholic  Uiwhop, 
41  111.  14U. 


rSO  ABSTRACTS    OF   TITLE. 

to  a  sin)seqiient  suit,  or  to  defenses  set  uj)  in  a  subsequent 
suit,  unless  the  titles  and  defenses  are  j)i'eeisely  the  same 
as  in  the  lirst  suit.'  Nor  does  a  judgment  in  ejectment 
transfer  to  the  successful  party  the  title  of  the  adverse 
])arty,  but  if  presented  iu  the  proj)er  mode,  "whenever  such 
ail  verse  title  is  drawn  in  issue,  it  shuts  out  all  proof  of  same, 
and  its  effect  bears  a  closer  resemblance  to  an  extinnuisli- 
ment,  than  a  transfer  of  the  adverse  title.  The  judgment 
awards  the  possession  to  the  prevailing  party,  because  he 
had  the  title  at  the  commencement  of  the  action,  and  be- 
cause the  losing  party  had  no  title,  or  not  such  a  title  as 
would  authorize  him  to  withhold  the  possession  ;  but  it 
neither  directly  nor  indirectly  transfers  the  title."  Inas- 
much as  the  judgment  is  conclusive  on  the  rights  of  the 
})arties  to  the  subject-matter  of  the  action,  and  all  persons 
claiming  by,  through  or  under  them  by  title  accruing  after 
the  commencement  of  the  action,"  the  abstract  should  fully 
show  the  points  presented,  their  relation  to  the  land,  and 
the  final  disposition  made,  which  may  all  be  easily  accom- 
plished by  a  full  synoi)sis  of  the  pleadings,  the  verdict,''  and 
the  judgment  or  decree. 

§  17.  Quia  Timet.  This  is  an  anticipatory  remedy  to 
quiet  the  title  to  lands,'  and,  unlike  ejectment,  is  brought 
only  by  the  person  in  possession  of  the  land,  or  one  claiming  to 
be  the  owner  when  the  lands  are  unimproved  or  unoccupied.' 
It  is  an  ancient  chancery  remedy,  but  in  most  of  the  States 
is   now  a  statutory  action,  resorted    to  for  the  purpose  of 

'  Foster  v.  Evans,  51  Mo.  39.  iflf's  title:  Haddock  v.  Haddock,  23 

2  Mahoney  v.  Middle-ton,  41  Cal.  111.  384;  when  tried  by  the  court 

41.  tlie  finding  and  judgment  must  be 

'Sheridan  v.  Andrews,  3  Lans.  for  tiie  premises  described  'n  the 

(N.  Y.)  129;  Amesti  v.   Castro,  49  proceeding  and   the  character  of 

Cal.  325.  the  estate  recovered:  Harding   v. 

"Where  the  verdict  fails  tospe-  Strong,  42  111.  148. 

eify  any  estate,  judgment  can  not  *  Frequently  denominated  a  bill  of 

be  rendered  on  it:  Long  v.  Linn,  71  peace. 

111.    152;  but    a  findmg  that  the  •*  Gould  u  Sternberg,  105  111.  488; 

plaintiff  is  the  owner  of  the  land  is  Hardin  v.  Jones,  80  111.  313. 
sufficiently  explicit  as  to  the  plaint- 


CHANCERY    RECORDS    AND    PROCEEDINGS.  537 

quieting  the  title  or  the  removal  of  a  cloud,'  and  equity  is 
invoked  to  reach  persons  out  of  possession,  who  can  not  be 
compelled  to  defend  their  right  at  law.' 

The  decree,  unless  otherwise  provided  by  statute,  is  not 
properly  a  judgment  in  rem,  establisliing  title  to  the  land, 
but  operates  in  personam  only,  by  restraining  thetlefondant 
from  asserting  his  claim,  or  by  directing  him  to  perform  some 
duty,  as  to  deliver  up  his  deed  to  be  canceled,  or  to  execute  a 
release,  etc.* 

The  possession  which  confers  jurisdiction  in  such  cases 
must  have  been  acquired  in  a  lawful  way,*  though  the  com- 
plainant is  not  bound  to  show  a  perfect  title  as  against  all 
the  world,"  as  is  the  case  of  one  seeking  to  recover  posses- 
sion, and  the  title  asserted  must  be  the  legal  title,'  or  at  least 
the  complainant  must  be  the  real  owner.'  An  e(iuital>le 
claimant,  who  is  not  in  ])ossession,  can  not  invoke  tiu'  aid 
of  a  court  to  quiet  his  title  and  remove  the  cloud  cast  in»on 
it  bv  other  claimants.* 

"Where  clouds  or  obscurations  of  any  kind  arc  found  u])on 
examination,  and  no  other  or  more  convenient  method  ean 
be  employed  to  remove  them,  it  is  the  duty  of  counsel  to 
recommend  a  bill  to  quiet  title,  and  for  nearly  every  spe- 
cies of  colorable  interference  with  the  legal  title  tiiis  fur- 
nishes a  most  eflicient  remedy. 

§  IS.  Partition.  Originally,  ])artition  could  only  be 
enforced  between  co-parceners,  but  by  statute  in  England 
at  an  early  day  compulsory  partition  was  alhjwed  l)et\veen 
joint  tenants  and  tenants  in  common,  but  the  rigiit   as   ex- 

'Hardin  V.  Jonos.  HOTI1.3i:i;Cul-  '  Riick.T  r.   I)u..l.-y.    I'.t    111.  :i77; 

lins  V.  ajllins,  Hi  Oliio  St.   Uis.  SchrotMler  i'.  (niriu-y,  17  X  Y.  Suj.. 

■'  Harron  v.  I{<jl.l.iiis,  22  .Mi<li.  42;  Ct.  IVi. 
A\Um   Iiw.  Co.    V.    lJuckiiiii.sU'r,    13  •  Siin  Dic^o  v.    Allison.    10  Ciil. 

Ill,  201.  10-:  OHricn  r.  Crvin,  1<>  Kaii.  202; 

»Miift8ie    V.  Watts,     0     Cramh  Fciidii  r.  .Sago.  48  N.  Y.  17M. 
(U.  S.)  148:  Van<l<jver    v.  Fn-i-nian.  M'ailwlc  v.  Tiiulall.  40  Muvs.  229; 

20  Tex.   'i^\\     Surh    docnM-M    are  I>'«' r.  HujckI''^.  02  III.   427;   Ei<l«-n 

fonduxivc  on   partii^H  arnl  |nivii-M:  v.  Ki<l«n,  41  Ww.  40<>. 
r3ii»km.iMt«'r  r.  Iry<l»r.  12    III.    207.  "  IIiTrintilon  y.  WilliaiUH,  31  TfX. 

Ml.mliii    V.    JoHw,    m     III.    313.  448. 


53S  ABSTRACTS    OF    TITLE. 

erciscd  there  and  in  this  country  as  u'ell,  is  given  only  to 
one  having-  an  actual  or  constructive  possession  of  the  lands 
sought  to  be  partitioned.  Hence,  unless  the  statute  expressly 
provides  otlierwise,  the  right  is  peculiar  to  those  having  a 
present  estate,  which  carries  with  it  the  right  of  possession, 
and  necessarily  excludes  remainder-men  and  reversioners, 
who  have  simply  an  estate  to  vest  in  possession  in  fiituro} 
Partitions  occur  in  many  titles  of  long  standing,  particularly 
in  agricultural  lands  and  large  tracts,  and  as  the  interests 
of  minor  heirs  and  others  under  disability  are  frequently 
involved,  the  proceedings  should  show  affirmatively  a  full 
statutory  compliance.  The  procedure  is  substantially  the 
same  in  all  the  States,""  making  due  allowances  for  mi- 
nor differences  of  practice,  and  involves  a  presentation  of 
the  case  to  a  court  of  competent  jurisdiction ;  a  decree 
defining  the  interests  of  the  parties ;  the  appointment  of  a 
master  or  commissioners  to  execute  the  decree  and  make 
partition,  or  to  inquire  into  the  expediency  of  same  or  sus- 
ceptibility of  the  property  to  partition ;  the  report  of  the 
commissioners ;  and  confirmation  or  final  decree.  All  of 
the  foregoing  steps  are  essential,  and  form  regular  links  in 
the  chain  of  title.  It  is  customary  under  the  old  chancery 
practice  to  decree  a  mutual  interchange  of  deeds,  but  statu- 
tory power  is  now  generally  given  to  conlirm  title  in  the 
parties,  in  cases  of  partition,  without  this  formality.'  The 
decree  is  prima  facie  evidence  of  title  in  favor  of  each  of 
the  parties  to  the  particular  tract  adjudged  to  him,*  and 
conclusive  against  all  the  parties  before  the  court,  and  their 
privies.*  The  decree  under  the  statute  may  be  final  and 
conclusive  as  evidence  between  the  parties,  without  the  in- 

'  Sullivan  v.  Sullivan,   66  N.   Y.  tition:    Hopkins  v.  Medlej',  97  111. 

37;    Spight  r.   Waldron,  51   Miss.  402. 

356;  Scarborough  v.  Smith,  18  Kan.  ^Smith  v.  Crawford,  81  111.  296. 

399.  nVord  v.  Douthett,  44  Tex.  365. 

*  Under    the  statute  the  action  *  Freeman    on     Judg'ts,    g  308 ; 

for  partition  of  lands  is  a  suit  at  Wriglit  v.  Marsh,  2  G.  Greene,  94  ; 

law  in  some  of  the  States,  and  not  AUie    v.   Schmitz,    17    Wis.    169  ; 

in  etjuity,  and  is  a  substitute  for  Smith  v.  Crawford,  81  111.  296. 
the  old  common  law  action  of  par- 


CHANCEllY    RECORDS    AN'D    rROCEEDINGS.  530 

terchanfre  of  deeds,  either  by  the  parties  or  commissioners, 
as  it  ascertains  all  the  rights  involved,  and  leaves  nothing 
to  be  done  but  to  carry  it  into  effect.  It  does  not,  however, 
vest  in  either  of  the  co-tenants  any  new  or  additional  title 
in  respect  to  the  respective  parcels  set  off  to  each,  but  sim- 
ply severs  the  unity  of  possession  theretofore  existing.' 
"Where  title  is  deduced  through  a  decree  of  partition  di- 
viding the  land  between  the  heirs  of  a  deceased  owner,  the 
adjudication,  where  the  court  has  jurisdiction,  linding 
■who  are  the  heirs  at  law  of  the  deceased  owner,  is  jyriina 
facie  evidence  of  who  were  the  heirs  and  owners  of  the 
land  whose  interests  were  decreed  to  be  sold ;  and  in  an 
action  of  ejectment  brought  by  such  purchaser  against 
a  stranger  to  the  partition  suit,  the  plaintiff  is  not 
bound  to  produce  evidence  of  heirship  outside  of  such 
decree,  in  the  absence  of  proof  to  the  contrary.  Tiie 
doctrine  that  judgments  and  decrees  are  evidence  only  in 
suits  between  parties  and  privies  has  no  apjilication,  it  woultl 
seem,  to  such  a  case.'  The  synopsis  which  follows  will  serve 
to  fairly  indicate  the  method  of  showing  a  partition,  and 
will  also  serve  as  a  precedent  for  other  chancery  actions : 

III  Circuit  Court  of  Cook  Countij^  Illhio'is. 


Robert  E.  Jones, 
vs. 
Ed V) a r d  C.  Wa Ik  er, 
Thomas  Cannon^  Sa- 
rah C.  Newhouse,  a  mi- 
nor, and  James  W. 
Ncxvhoxise,  her  guard- 
ian and  tiext friend. 


Case  No.  39,379. 
In  Chancery. 
BUI  fled  Oct.  U,  7,W/. 
Jirpresentj<  that  couijtJaniaut 
and  dtfendant  Edward  ( '.  ]Valk- 
er,  are  the  owners  each  of  an  un- 
divided one  half  as  tenauts  in 
common  of  Lot  SO,  School  Trus- 
tees' Stdfdivision  of  the  North 
part  of  Section  16,  Tmon  89  North,  Range  IK  cast  of  3d  I\ 
M.,  Icing  n/)W  subdivided  into  sixteen  lots  and  kitotrn  as 
SecrisCs  Subdivision  tf  said  Lot  SO. 

That  defendants,  Sarah  C.  Newhouse,  a  minor,  and  Thomatt 
Cannon,  have  or  claim  to  have,  some  interest  in  or  lien  upon 
said  p7'em  ises. 

>  Wa«k-  r.  Dcray,  50  Cal.  370.  ♦  Wl.ilinaii  f.  Iln..  L.  ri\  .  ~,\\  III. 

lUU. 


540  ABSTRACTS   OF   TITLE. 

Prays  for  a  partition  andtlivision  of  said  premises  acrorcl- 
iny  to  the  ■riyJits  and  interests  of  the  p)arties  m  severalty,  if 
same  can  he  done  without  manifest  prejudice  to  the  owners 
thereof,  or  if  the  partition  can  not  he  made  without  such  man- 
ifest prejudice,  that  a  sale  thereof  he  made  according  to  law, 
and  that  the  proceeds  of  such  sale  he  distrihuted  among  the 
2)arties  7'espectively  entitled  thereto.^ 

Chancery  summons,  {to  Cooh  county)  issued,  dated  Oct.  2Ji,, 
ISSl,  to  all  said  defendants,  returnahle  3d  Monday  of  Noi).^ 
188 1,  and  didy  served  upon  all  said  parties? 

Answer  of  defendant  Edward  C.  ^Valker  {and  replication 
thereto)  filed  Dec.  8,  1881. 

Default  of  defendants,  Thomas  Cannon,  Jam.es  W.  New- 
house,  guardian  and  next  friend,  taken  and  entered  Dec.  8, 
1881,  {chancery  record  4^,  p>g.  198)  for  want  of  plea,  an- 
swer or  demurrer  to  hill,  a7id  Louis  Hunt  appointed  guardian 
ad  litem  for  said  minor  defendant,  Sarah  A.  Newhouse. 

Cause  referred  to  L.  J.  J.  Nissen,  Master  in  Chancery, 
Dec.  8,  1881,  to  take  proof  s,  etc. 

Answer  of  said  minor  defendant  hyher  guardian  ad  litem, 
filed  Dec.  8,1881. 

Master'' s  report,  submitting  proof  s  and  exhibits,  filed  Feh. 
20,  1882. 

Said  m,aster  reports  that  the  material  facts  averred  in  the 

'  Tlie  law  contemplates  two  modes  copy  or  summary  of  the  retiims  of 

of  proceeding  in  order  to  procure  a  the  officers.    Where  all  the  parties 

division  of  real  estate  held  in  joint  enter  an  appeai'ance    the    method 

tenancy  or  in  common  :  (1)  By  a  above  given  is  sufficient,  but  wlien 

partition  of  the  premises  without  tliere  has  been  default,  it  is  essen- 

sale;  and  (2)  where  a  partition  can  tial  to  a  correct  opmion  that  the 

not  be  conveniently   made,  b^--  a  method  of  service  upon  the  non-ap- 

sale  of  the  property:    2  Barb.  Ch.  pearing  parties  be  shown,  and  this 

Prac.  *262.  can  only  be  done  by  a  copj'  of  the 

*  Very  frequently  counsel  desires  return.      Stating    that   defendant 

to  luiow  the  manner  of  service,  par-  was  "  personally  served  "  is  not  suf- 

ticularly  where  persons  under  disa-  ficient,  as  a  very  slight  omission 

bility  are  interested,  and  in  such  will  frequently  vitiate   the  return 

case  the    abstract    at    this    point  and  prevent  jurisdiction  from  at- 

should  disclose  such  method  by  a  taching. 


CHAXCEKY    RECORDS    AND    PROCEEDINGS.  541 

hill  have  heeyi  fully  proved,  and  said  complainant   is  cntilhd 
to  the  relief  prayed  for  in  said  hill. 

Decree  entered,  Feb.  20,  1882  {Chancery  Record  Ifi,  paye 

[TTere  should  follow  the  decree  or  every  material  p)art  there- 

"Where  the  decree  is  interlocutory  only,  the  sul)sequent 
proceedings,  as  the  appointment  and  rei)ort  of  commission- 
ers, offers  and  acceptance  of  ]xirties,  together  Avith  the  fin;d 
decree  and  confirmation  should  follow  in  rcirular  ordci-. 
What  has  been  given  will  serve  to  fully  illustrate  the  method 
in  which  subsequent  steps  may  be  shown. 

§  19.  Specific  Performance.  Equity  will  enforce  specilic 
performance  of  agreements  relating  to  lands;'  com])el  con- 
veyance of  land  purchased,'  either  by  the  vendor  or  his  heirs;* 
or  whQre  specific  performance  can  not  be  enforceil,  Avill  give 
other  adequate  relief.*  The  essential  conditions  of  such  con- 
tracts are :  That  they  be  made  by  comjietent  parties,  willingly 
entered. into;' that  the  terms  are  certain  and  well  deiinctl;' 
be  founded  upon  sufficient  consideration;'  and  the  ])arty 
seeking  its  performance  must  fulfill  his  obligations  under  it." 
It  must  further  be  lawful  in  its  character,'"  and  such  as  thu 
court  can  enforce."  As  this  matter  occurs  most  frccjucntly, 
in  connection  with  title,  in  actions  growing  out  of  agree- 
ments to  deed,  it  is  advisalde,  that,  in  case  perfoi-mance  has 
been  decreed  andconsumniatf.'d.  a  very  full  synopsis  bo  given 
of  all  the  matt-rial  pai'ts  of  the  ph^idings;  masters    rei>ort, 

'  See  "  Judgments  and  Docreos"  '' S-linuIiii^' r.    KritNiI,   .jri  AVis. 

for  a  prcrcdL'iit  of  a  decn-e.  SriT;  ("(jl.son  v.  Th(>iu|>suti,  2  Wlu-jit. 

»  K.rffxjt  V.  IirLckonriil<,'r',  H7  III.  3:{«:  ( li^os  v.  Cochran,  M  Ind.  r.lC}. 

205.  '  ("lunry  i'.  Co«.k,   7   Wis.     AVA\ 

»MarIin«r.  Marliii;:,  !»l   W.    V;i.  Smitli  f.  Wood.  12  Wis.   !JS2. 

79.  •  N.  W.  Iron  ( "o.  r.  M.ad,  21  Wis. 

*  Bennett  v.  W:iller,  2:i  111.  07.  474:  Ishnual  r.  Parker,  lU  III.  :{2J. 
» Woo<lwanl  J".   Harri.s,   2   Harl>.  '» MrClurken   r.    I)etri<h.   3:1111. 

439;  Oliver  v.  Croswell,  42  III.  41.  849;    Hooker  r.  iJe   I'ahm,  28   Ohio 

•  JohnsUm  V.  Di^ltre.  17   III.  433;      St.  2.')!. 

Taylor  i'.  M.rrill.  r,r,  111.  T,2.  "  MeClellan  v.  D.irrah.  r,i)\\\.  249. 


542  ABSTRACTS    OF   TITLE. 

if  tliore  has  been  a  reference  of  title;  and  of  the  final  decree. 
If  performance  has  been  denied,  and  the  contractor  agree- 
ment is  of  record,  the  same,  together  with  a  brief  notice  of 
the  action,  may  be  shown  as  a  special  appendix.  In  addi- 
tion to  actions  in  the  Circuit  Court,  when  any  deceased  per- 
son was  bound  by  a  contract  in  writing  to  convey  any  real 
estate,  a  specific  performance  by  the  personal  representa- 
tives of  such  deceased  person  may  be  decreed  in  the  probate 
court,  in  all  cases  where  the  deceased,  if  living,  might  be 
compelled  to  execute  such  conveyance.  The  jurisdiction  in 
this  event  is  obtained  by  petition  setting  forth  the  jurisdic- 
tional facts,  and  of  notice  duly  given  in  accordance  with  the 
statute  and  the  petition,  notice,  proof  of  service  and  decide, 
should  precede  or  supplement  the  administrator's  or  execu- 
tor's deed  whenever  it  is  shown  in  the  abstract.' 

§  20.  Redemption.  Bills  to  redeem,  though  formerly 
of  common  occurrence,  are  now  rarely  employed,  from  the 
fact  that  the  fundamental  law  concerning  mortgages  has 
been  radically  changed,  and  the  necessity  of  equitable  in- 
terference to  restore  the  mortgagor's  rights  no  longer  exists 
save  in  a  few  instances.  After  the  law  day  has  passed  the 
status  of  the  mortgagor's  title  is  substantially  as  good  as  it 
was  before,  and  until  foreclosed  by  legal  methods  the  right 
to  redeem  by  simple  payment  is  unimpaired.  Such,  at  least, 
is  the  recognized  law  in  a  majority  of  the  American  States. 
But  when  a  deed,  though  in  fact  given  as  security  only,  is 
absolute  on  its  face,  and  purports  to  convey  an  absolute 
estate  in  fee,  the  mortgagor,  to  assert  his  right  of  redemp- 
tion and  become  reinvested  with  his  former  title,  must  still 

'  By  statutory  direction  in  many  thority  of  the  executor  or  admin- 
States  a  certified  copy  of  the  order  istrator  to  make  the  conveyance, 
or  decree  directing  the  execution  of  while  the  convej'ance  itself  is  made 
the  conveyance,  is  required  to  be  effectual  to  pass  the  estate  con- 
recorded  in  the  registry  of  deeds  tracted,  as  fully  as  if  the  contract- 
of  the  county  in  which  the  land  is  ing  part}'  himself  were  still  living 
situate,  and  such  certified  copy  is  and  then  executed  same:  R.  S. 
made  evidence  of  the  correctness  Wis.  Ch.  167;  Minn.  Gen.  Stat, 
of  the  proceedings,  and  of  the  au-  Ch.  58. 


CHANCEKT    RECORDS    AND    PROCEEDINGS.  543 

make  application  to  a  court  of  equity  by  a  bill  to  redeem, 
or  such  other  similar  remedy  as  the  statute  has  provided. 
In  like  manner,  if  a  mortgagee,  having  entered  for  condi- 
tion broken,'  refuse  to  relinquish  the  possession  of  the 
estate  mortgaged,  after  payment,  or  tender  of  payment,  of 
the  money  due  on  the  mortgage,  the  only  remedy  of  the 
mortgagor,  in  States  where  the  ancient  doctrine  still  obtains, 
in  order  to  regain  the  estate,  is  by  a  bill  to  reileem.'  Ordi- 
narily, however,  this  latter  end  is  attained  by  a  direct  pro- 
ceeding to  have  the  mortgage  canceled.  The  bill,  in  some 
form,  together  with  its  attendant  decree,  will  occasionally 
occur,  particularly  in  case  of  equitable  mortgages,  and  as 
its  effect  upon  title  is  very  marked,  it  must  be  fully  set 
forth. 

§  21.  Foreclosure.  Probably  no  class  of  legal  proceed- 
ings so  often  figures  in  examinations  of  title  as  actions  brought 
to  foreclose  and  enforce  liens,  and  particularly  is  this  true 
in  the  matter  of  the  foreclosure  of  mortgages.  A  fore- 
closure in  equity  is  a  proceeding  by  which  the  mortgagor's 
right  of  redemption  in  the  m()rtgaij:etl  premises  is  barred  or 
closed  forever,  and  occurs  when  the  mortgagor  has  for- 
feited his  estate  by  non-payment  of  the  money  due  on  the 
mortgage  at  the  time  appointed,  but  still  retains  the  equity 
of  redemption.'  In  such  case  the  mortgagee  may  call  ujion 
the  mortgagor,  in  a  court  of  equity,  to  redeem  his  estate 
presently,  or,  in  default  thereof,  be  forever  closed  or  barred 
from  any  right  of  redemption.  Two  general  methods  of 
foreclosure  are  recognized  in  equity,*  one,  called  strict  fore- 
closure, whereby  tlie  mortgagee  is  adjudged  the  absolute 
owner  of  the  pnjperty;  and  the  other,  by  a  sale  of  the  j)roj>- 
erty,  under  the  directi<jn  and  by  an  ollieer  (tf  the  court,  in 

'  This  is  still  pormitU'd  in  ti  ft.-w  p.-iyintnt  luis  expirtnl:  Iltirshaw  w 

States,  soe  Chaj..  X.XII.  McK.sson.  00  N.  C.  200. 

'  Parsons  v.  Wells,  17  Miiss.  419;  *  TlitTf  Ik  als4»  a  Uxt^^  iin-thcxl  of 

Sherman  r.  AbUjtt.   IH   Pick.   41H.  f<»rc'ck>suri' liy  nu-aiis  uf  a  priKMvd- 

»  1  Ikjii.  Imw  Diet.  f)Wi.    A  court  in^   hy   scire  fin-iits,    l.ut   uhirlj, 

of  wiuity  will  ni'ver  fJccTif  a  fore-  frotii  its   iiiaili-<iualf  naluro,  ia  ncl- 

cloburo  until  the  i»erio(l  liiiiilod  fur  dom  ruBort<.-<i  to. 


544:  ABSTRACTS    OF    TITLE. 

Avhich  case  the  proceeds  are  aiii)lie(l  to  tlic  discliaro;e  of  in- 
cumbrances, according  to  their  ])riority,  and  the  balance,  if 
any,  paid  over  to  the  mortgagor.  Strict  foreclosure  lias  al- 
ways been  regarded  as  a  harsh  remedy,  and  is  not  permitted 
in  most  of  the  States,  nor  is  the  title  thus  acquired  as  safe  fis 
■when  made  by  the  ordinary  foreclosure  by  sale.  The  title 
derived  under  a  foreclosed  mortgage  is  evidenced  by  the 
mortgage  itself;  the  proceedings  and  decree  in  foreclosure; 
the  certificate  of  sale,  report,  and  confirmation;  and  finally 
by  the  selling  officer's  deed,  all  together  composing  one 
transaction.  Considerable  particularity  must  be  observed 
in  the  synojisis  of  the  proceedings,  especially  in  regard  to 
parties,  and  counsel,  in  passing  title,  should  see  that  all  per- 
sons who  might  legally  assert  any  rights  in  relation  to  the 
mortgaged  premises  have  been  regularly  brought  in  and 
pro))erly  barred  or  their  rights  adjusted,  and  this  will  in- 
clude not  only  the  mortgagors,  but  subse(]uent  mortgagees, 
judgment  creditors,  lien  holders,  and  all  other  persons  pos- 
sessing legal  rights  or  equities  accruing  subsecpient  to  the 
lien  asserted  by  the  mortgage.'  Where  the  foreclosure  is 
recent,  and  particularly  when  the  title  under  investigation 
is  that  offered  at  the  foreclosure  sale,  the  decree  and  ante- 
cedent proceedings  should  be  set  out  very  fully,  for  where 
a  sale  on  foreclosure  is  expressly  ordered,  subject  to  all 
prior  liens  then  established  or  which  might  be  established 
on  reference  previously  made  and  then  pending,  the  vendee 
will  take  the  title  subject  to  the  future  allowance  of  liens, 
and  can  not  contest  their  validity." 

§  22.  Dower.  The  interest  which  a  widow  possesses  in 
the  lands  of  her  deceased  husband  in  right  of  dower  may, 
at  common  law,  be  assigned  to  her  in  severalty  by  the  heir, 
without  the  order  of  a  court  and  without  a  deed,  for  the 
assignment  in  such  case  is  not  regarded  as  a  conveyance  of 
title,'  but  only  the  ascertainment  of  an  interest  which  is  a 

'  Hinson  v.  Adrian,  86  N.  C.  61;  »  Swann  v.  Fabyan,  29  Alb.  Law 

Maburj-  v.  Ruiz,  58  Cal.  11.  Jour.  396. 

8  Conant  v.  Little,  1  Pick.  180. 


CITAXCERY    KECORDS    AXD    TROCEEDIXCS.  545 

continuation  of  the  estate  of  tlie  husband,  and  which  is  heUl 
of  him  by  appointment  of  law;'  the  only  elTect  of  the  assiji-n- 
ment  being  to  distinguish  the  laud  to  which  it  attaches  from 
the  rest  of  the  husband's  estate.  But  should  the  heir  ne"-- 
lect  or  refuse,  within  a  reasonable  time  after  the  death  of  a 
husband,  to  lay  off  and  assign  to  the  widow  such  portion  of 
tlie  premises  as  she  may  be  entitled  to  use  and  occupy,  or 
when  the  particular  part  can  not  be  agreed  uj^on,  or  when 
the  right  is  disputed,  recourse  may  be  had  to  equity  to  de- 
termine the  rights  and  apjioj-tion  tlie  interests  of  the  parties. 
Where  the  right  is  undisi)uted,  dower  may  be  assigned  by 
the  probate  court,  as  an  incident  to  the  settlement  of  the 
husband's  estate,  and  the  award  in  such  case  should  sub- 
stantially appear  in  the  synopsis  of  probate  proceedings,  or 
as  an  independent  exhibit.  Where  the  right  is  disputed  the 
probate  court  ordinarily  has  no  jurisdiction,  Avhile  in  many 
States  if  the  heir  or  other  person  shall  not,  within  some 
specified  period  after  the  death  of  the  husband,'  satisfac- 
torily set  over  and  assign  to  the  surviving  wife  dower  in 
and  to  all  lands  whereof  by  law  she  is  or  may  be  dowable, 
such  surviving  wife  may,  in  the  first  instance,  sue  for  and 
recover  the  same  by  petition  in  equity,  against  the  heir  or 
any  other  person  claiming  right  or  possession  of  said  estate. 
In  either  case  the  interposition  of  commissioners  is  contem- 
plated, and  the  report  of  the  commissioners,  together  with 
the  approval  of  the  court,  are  necessary  parts  of  the  ab- 
stract of  the  proceedings.  Where  an  aUowance  is  made  in 
lieu  of  dower  a  statement  must  be  made  of  that  fact,  par- 
ticularly when  by  decree  the  assessment  of  such  alh»\vaiice 
is  made  a  lien  upon  tlie  land. 

§  23.  IMvoi'cc.  'i'hc  dissolution  of  the  marriage  con- 
tract, though  formerly  a  )">ower  exerci.scd  by  the  legisla- 
ture, is  now  wry  generally  reh^gated  to  ccturts  of  ('(luity, 
and   as  a  rule,  such  courts  have  the  exclusive  original  juris- 

'  Famsworth   v.   CmI**,    42   Wis.  r><|ually  dowiihli*  in  tlw  lanil»  c^f  tlu* 

40.'5;  4  Kent  Corn,  G2.  otlu-r,  tin-Hi'  rt'nmrk.s  will  api'Iy  to 

•  Whcrf  hu»ljutul   and  wife   uro  both  Ht-xca. 
85 


540  ABSTRACTS    OF   TITLE. 

diction.  Until  decree  Leas  actually  been  made,  the  legal  re- 
lations of  the  parties  continue  to  subsist,  even  where  the 
marriage  is  utterly  void  for  pre-existent  causes,  and  such 
decree,  to  be  effective,  must  further  be  made  during  the  life- 
time of  both  parties.'  At  common  law,  a  divorce  was  only 
granted  for  pre-existent  cause,  and  had  the  effect  of  bastard- 
izing the  issue.  Under  the  statute  divorces  are  granted  for 
causes  arising  subsequent,  as  well  as  prior,  to  the  marriage," 
and  do  not  affect  the  legitimacy  of  the  children  of  the  mar- 
riage, except,  perhaps,  when  the  divorce  is  granted  on  the 
grounds  of  a  prior  marriage.'  Pending  the  determination 
of  the  cause  the  husband  may  be  enjoined  from  disposing  of 
his  property  in  order  to  defeat  any  allowance  of  alimony,* 
but  such  injunction  is  never  made  perpetual  on  granting 
the  decree.'  The  allowance  of  alimony  may,  however,  be 
enforced  by  a  sale  of  the  husband's  real  estate,  and  by  the 
decree  the  payment  of  same  is  usually  made  a  specific  lien 
upon  his  property.  When  alimony  or  maintenance  is  made 
to  become  due  by  installments,  and  a  sale  is  made  to  meet 
such  installments,  the  title  will  pass  subject  to  the  lien 
of  installments  not  then  due  unless  the  court  shall,  at 
the  time,  direct  otherwise."  When  property  is  held 
by  one  party  which  equitably  belongs  to  the  other,  the 
court  may  compel  conveyance  thereof  to  be  made,  and 
sometimes,  in  case  of  a  community  of  interest,  a  partition 
is  necessary.''  Lands  in  fee  may  be  decreed  in  satisfaction 
of  alimony,'  or  the  court  may  assign  as  such  the  use  for  life 
of  part  of  the  husband's  estate."     It  is  not  customary,  how- 

'  Reeves'  Dom.  Rel.  204;  1  Black,  lien  upon  his  land,  and  he  may  be 

Com.  440.  compelled  to  secure  the  lien  fur- 

«  Clark  V.  Lott,  11  111.  105.  ther  by  mortgage. 

'  Consult  local  statutes  for  the  *  All  these  matters  are  the  sub- 

gi'ounds  of  divorce.  ject  of  express  statutory  regulation. 

*  Vanzant  v.  Vanzant,  23  111.  536;  ''  Stewartson   v.    Stewartson,    15 

Gray  v.  Gray,  65  Ga.  193.  111.  145. 

'  Errissmann  v.  Errissmann,  25  ®  Wheeler  v.  Wheeler,  18  111.  39. 

111.  136:  Keating  v.  Keating,  48  111.  «  Keating  v.  Keating,  48  111.  241; 

242.      Instead  of  the  injunction,  Jollitf  v.  Jolliff,  32  111.  527. 
the  decree  makes  the  alimonv  a 


CHANCERY   RECORDS   AND    PROCEEDINGS.  547 

ever,  to  disturb  the  husband's  real  estate,  but  a  definite 
money  alloAvance  is  made  instead  ;  "  indeed,"  says  Dickey,  J., 
"  the  cases  are  very  rare  where  the  fee  in  lands  held  by  the 
husband  should  ever  be  required  to  be  transferred  to  the 
wife,  unless  she  has  some  special  equity  in  that  particuhir 
land,  arising  from  the  purchase  having  been  made  with  lier 
money,  or  from  some  other  cause  substantially  placing  the 
husband  in  the  position  as  to  that  pro])erty  equivalent  to 
that  of  a  trustee  holding  in  his  name  for  tlie  wife,  or  in  a 
position  in  its  nature  equitabl}^  equivalent  thereto.  In  such 
cases,  though  the  form  of  the  decree  may  be  that  of  adjust- 
ing the  question  of  alimony,  the  substance  is  more  in  the 
nature  of  the  enforcement  of  a  trust."  ' 

"With  the  exceptions  hereafter  noted,  divorce  proceedings 
are  seldom  shown  in  abstracts  of  title,  save  as  they  may  in- 
cumber land  by  the  lien  for  alimony,  and  then  only  in  brief 
and  general  terms.  A  divorce  has  another  important  elfect 
on  titles,  however,  considered  in  respect  to  dower.  It  is  a 
doctrine,  both  of  the  common  law  and  of  the  statute, 
that  the  dissolution  of  the  marriage  rchition,  ipso  facto  re- 
stores the  parties,  legally  as  well  as  sr)cially,  to  the  .same 
relative  position  they  occupied  ])i-i()r  to  entering  into  same. 
One  of  the  incidents,  therefore,  is  loss  of  the  dower  right  of 
the  Avife,'  and  to  show  a  full  and  complete  exposition  of  title 
an  appropriate  mention  of  a  divorce  seems  necessary  in  all 
cases  where  the  question  of  dowor  would  ])rop('rly  arise. 
This  may  be  accom})lished  l>y  a  Ijrief  reference  to  the  case 
as  follows: 

Circuit  Courts  CooTc  County. 
Albert  Gallavmy,  )       ('<txe  No.  10rio7. 

V8.  r      Ji'fl  for  <1ivorc»\ 

Mary  A.   Gallavmy.       )      January  20^  IS&l.     Decree  of 

divorce   rcudered,  which   orders 
that  defendant  he,  and  she  is,  forever  barred  <f  and  from  all 

«  Wilwm  V.  Wilson,  102  III.  297.        CJiv.-n  r.   Marr.  27   M.«.  212:  Mill- 
»Bunlirkr.  BriKKH,  11  Wis.  12rt;      more  u.  Miltiuore,  lU  \'i\.  St.  151. 
Ric«  V.   Luinlcy,   10  Ohio  St.  5U0; 


54S  ABSTRACTS   OF   TITLE. 

right  and  claim  of  doiccr  in  and  to  the  lands  and  tenements 
of  said  complainant. 
Costs  paid. 

In  many  cases  where  a  divorce  is  pemling-.  prudence  wonld 
sucTircst  that  a  brief  allusion  be  made  to  it,  vet  the  com- 
mencement  and  pendency  of  such  action,  -where  the  bill 
merely  sets  forth  the  defendant's  lands  as  affecting  the 
amount  of  alimony  to  be  allowed,  and  neither  asserts  nor 
seeks  any  right  in  respect  to  them,  affords  no  notice  lis 
pendens  sufficient  to  affect  the  rights  of  purchasers  from 
such  defendant.  AVhere,  however,  the  bill  sets  up  some 
siiocific  claim  of  right  in  the  lands,  or  Avhere  any  part  of 
them  are  asked  to  be  assigned  for  alimony,  or  any  other 
right  is  asserted  in  respect  to  them  or  any  other  relief  asked 
in  reirard  to  them,  it  Avould  seem  that  the  doctrine  of  lis 
pendens  will  apply;  and  any  one  who  purchases  such  prop- 
erty during  the  pendency  of  the  action  will  be  bound  by  the 
judgment  subsequently  rendered  therein.' 

§  2i.  The  Right  of  Eniinent  Domain.  The  general  sub- 
ject of  eminent  domain  has  been  alluded  to  in  a  former  part 
of  this  book,  but  may  be  advantageously  referred  to  at  this 
place  in  connection  with  its  practical  a])plication  to  the  alien- 
ation of  land.  The  right  of  eminent  domain  is  defined  to  be 
the  ultimate  right  of  the  sovereign  power  to  appropriate  not 
onfy  the  public  property,  but  the  private  property  of  all 
persons  within  the  territorial  sovereignty,  to  public  pur- 
poses," and  though  the  exercise  of  the  right  usually  affects 
only  the  use  and  enjoyment  of  the  land  and  not  the  fee,'  it 
is,  in  effect,  a  perpetual  right  of  user  almost  equal  in  dignity 
to  the  fee,  and  in  some  States  it  contemplates  a  transfer  of 
the  fee  itself."      This  right  is  variously  exercised  by  the 

'  Sapp  V.  Wightmaji,  103  111.  150;  ris  v.  Schallsville,    6  Bush  (Ky.), 

Wilkinson  u.  Elliott,  23  Pac.  Rep.  G71. 
(Kan.)  614.  * Nicoll  v.  R.  R.  Co.,  2  Kern.  121 ; 

'  Vattel's  Law  of  Nations,  b.   1,  People  v.  Mauran,  5  Den.  889;  Hey- 

cl).    20;     Charles  River  Bridge  v.  ward  v.  Mayor  of  N.  Y.,   3  Seld. 

Warren  Bridge,  11  Pet.  641.  214:  Ti'oy  v.  R.  R.  Co.,  42  Vt.  265; 

3R.   R.  V.  Burkett,   42  Ala.  83:  Challis  r.  R.  R.  Co.,  16  Kan.  117. 
Hatch  V.  R.  R.,  18  Ohio,  92;  Mor- 


CHANCERY    KECOKDS    AND    TROCEEDINGS.  540 

State,  both  in  its  o^vll  behalf,  as  for  the  acquisition  of  land 
for  State  institutions  or  improvements,  roads,  canals  and 
other  public  works  of  a  strictly  public  character,  and  in  be- 
half of  corporations  for  works  and  improvements  of  a  quasi 
]niblic  character,  but  it  is  a  f unilamental  principle  that  any 
lands  of  the  subject,  for  whatever  purpose  recpurcd,  shall 
not  be  taken  or  damaged  for  }>ublic  use,  without  just  com- 
pensation. AVhen  taken  under  this  right  and  in  fee,  it  is 
freed  from  all  contingent  interests,  liens  and  ecpiities,  iiiehid- 
ing  inchoate  rights  of  dower,  judgment  liens,  etc' 

§  25.  Proceedings  tor  t'oudeinnation  and  Assessniciit. 
Provision  is  made  iu  every  State  for  the  concU'iunation  of 
and  compensation  to  be  paid  for  or  in  respect  of  the  pro))erty 
sought  to  be  aj^jn'opriated  or  damaged,  when  no  agreement 
can  be  effected  by  the  parties  intei-ested,  or  incase  the  owner 
of  the  property  is  incapable  of  consenting,  or  his  name  or 
residence  is  unknown,  or  he  is  a  non-resident  of  the  State. 
The  general  ])rocedure  is  very  uniform,  though  the  instru- 
mentalities used  are  not  alike  in  all  the  States.  'V\\v  i»ro- 
ceedings  generally  contem])late  an  investigation  by  a  jury, 
and  an  assessment  and  award,  which,  when  regularly  accom- 
plished and  confirmed,  has  the  effect  of  divesting  the  title  of 
the  former  owner  and  clothing  the  corporation  with  such  title 
as  the  law  imports.  This  is  effected  by  a  }K'tition  addressed 
to  a  court  of  competent  jurisdiction,  or  to  a  judge  thereof, 
either  in  term  time  or  vacation,  setting  forth,  by  referenee, 
tiie  authority  in  the  premises,  of  the  jiarty  seeking  to  take 
or  damage  the  property  so  required,  tin?  purpose  for  whieh 
said  j)ro]>erty  is  souglit  to  be  taken  or  damaged,  a  d<'sci-i|v- 
ti<»n  of  the  )»ro|)erty,  the  names  of  all  persons  interested 
therein  as  appi'aring  f)f  record,  if  known,  or  if  not  known 
stating  the  fact,  and  if  the  j)roeeedings  seek  to  alfeet  tlie 
property  of  jx'rsons  under  guardianship  th(>  guardians,  <»r 
conservators  of  j)ersons  havini:  eonservatoi-s,  must  also  b(» 
made  i)arties  del^endant,  an<l  if  married  women  their  hus- 
bands   must    be    mad(!    ])arties.     I'ersons  int«'rested  whose 

'  M(Hjn.'  f.  Alilt-nmn,  itc,  'ISaiuI.  'l.'O;  aflliniccl.l  hjil.  110;  Wat^.n  v. 
R.  R.,  47  N.  Y.  107. 


550  ABSTRACTS    OF   TITLE. 

names  arc  unknown  may  be  made  ])arties  by  the  descrip- 
tion of  the  unknown  owners ;  the  latter  fact  being  presented 
by  affidavit.  Notice  is  given  to  the  parties  interested 
by  personal  or  substituted  service,  and  a  hearing  is  had 
either  before  the  judge  to  whom  the  petition  was  ad- 
dressed, or  commissioners  appointed  by  him,  and  when 
heard  by  the  judge  a  jury  may  be  imjianeled  to  ascertain 
the  damages.  The  record  in  the  matter  sliould  substantially 
a]>pear  in  the  abstract,  and  must  be  suiliciently  full  to  dis- 
close all  jurisdictional  facts  and  that  the  power  has  been 
exercised  according  to  the  direction  of  law.  When  the 
proceedings  are  conducted  by  commissioners  a  report  is 
made  to  the  court  granting  the  authority,  and  this  report 
substantially  embodies  all  that  is  necessary  to  show  com- 
plete divcsture,  while  the  court  roll,  when  such  proceedings 
are  conducted  primarily  before  a  court,  or  on  ai)i)eal,  will 
also  serve  the  same  end. 

§  26.  Construction  of  Wills.  The  validit}^  of  a  will 
may  be  contested  in  equity  as  well  as  before  the  probate 
court,'  yet  this  is  seldom  done,  except  on  appeal,  and  the 
aid  of  a  court  of  equity  is  usually  invoked  only  to  })ass  upon 
and  construe  indefinite  and  uncertain  passages,  or  to  direct 
the  executor  in  the  execution  of  indeterminate  or  insuffi- 
ciently expressed  trusts.  "Where  any  doubt  arises  as  to  the 
proper  construction  of  a  will,  or  as  to  the  rights  of  parties 
thereunder,  resort  is  usually  had  to  a  court  of  equity  for  a 
construction  and  decree  for  distribution,  and  the  decree  so 
made,  so  far  as  it  relates  to  land,  either  directly  or  by  just 
implication,  becomes  an  essential  muniment  of  title,  equal  in 
importance  to  the  will  itself,  and  of  which,  as  an  expression 
of  the  testator's  intention,  it  forms  an  integral  part. 

>  Duncan  v.  Duncan,  23  111.  264;  Flinn  v.  Owen,  68  lU.  111. 


CHAPTER  XXIX. 


TAXES  AND  TAX  TITLES. 


g  1.     Definition — Nature  of  taxing  g  10.  Tax  sales — Tax    payer    as 
power.                                                              purc'luuser. 

2.  Subjects  of  taxation.  11.  Rights  of  purchasei*s. 

3.  Lien  of  taxes.  12.  Keileniption. 

4.  Tax  titles.  i:5.  Certific-at<>  of  sale. 

5.  Nature  of  tax  titles.  ,    14.  Tax  deeds. 

6.  Proceedings  incident  to  taxa-  1">.  Continued. 

tion.  10.  Formal  parts. 

7.  Description  of  land — Assess-  17.  EtTect  of  deed  as  evidence. 

or's  plats.  18.  Tax    deed  —  Possession  — 

8.  Sale  for  non-payment.  Limitation. 

9.  Forfeitures.  19.  Tax  abstracts. 

§  1.  Definition — \atnro  and  St'opooftlio  Taxinc: Power. 

By  the  coucurrent  opinion  of  lawyers,  judges,  IcxicojL^ra- 
pliers,  and  political  economists,  as  well  as  by  the  general  and 
popular  understanding,  taxes  are  burdens  or  charges  imposed 
by  the  legislative  power,  upon  persons  or  pro])erty,  to  raise 
money  for  public  purposes  or  to  accomi)lish  some  govern- 
mental end.'  This  power  is  vested  wholly  in  the  legislature, 
though  munici]ialities  may  exercise  same  by  a  si)ocial  ilelega- 
tion  of  authority,  and  is  unrestricted  except  when  it  is  op- 
posed to  some  provision  of  the  Federal  or  State  constitution.* 
It  extends  to  every  trade  or  occu])ation,  to  every  object  of  in- 
dustry, use,  <jr  enjoyment,  and  to  every  species  of  possession.* 
The  rigiit  of  taxation  has  for  its  fouiidalion  the    priri(i|»le 

'  Hanson  v.  Vernon,  27  Iowa,  28;  *  Curry  v.  .Sperx-er,  14  Ki'ixirttT. 

Mitrlicll  r,  Williams,  27  In<l.  02;  r)27;  Dil'auw  v.  NfW  Albany.  22 
Ula<kw.  Tax  Tit.  1.  Iiid.  204;  AtidcrHon  r.  KinwUruiii- 

>  P.-oj.leu.  MarKliail,  1  Oilin.  (III.)       im/  Cu.,  11  liul.  lUU. 
672;  Wider  v.  Euat  St.  Louia,  00  III. 
i:w. 

(051) 


552  ABSTKACTS    OF   TITLE. 

that  the  citizen  shall  contribute  to  the  siii)port  of  theo-overn- 
nient  which  j)rotects  his  })ersi>n  and  ])ropei'ty,  in  just  pro- 
portion to  the  value  of  the  property  protected  ; '  and  equality, 
so  far  as  is  practicable,  is  its  distinguishing  characteristic." 
AVhiie  it  is  scarcely  possible  to  attain  absolute  ctjuality  in 
all  cases,  or  benefits  commensurate  \vith  the  burden  of  taxes 
imposed,  yet  the  princi})le  upon  which  the  a|)proxiniation  to 
ecjuality  is  to  be  maintained  must  be  ])rescrve(l  inviolate  in 
this,  that  all  property  subject  to  taxation  shall  be  uniformly 
assessed,  according  to  value;  a  rule  ap])licable  to  all  tax- 
ation, whether  for  general,  local  or  special  purposes.'  The 
legislature,  as  we  have  seen,  is  the  sole  source  and  repository 
of  the  taxing  power;  on  the  other  hand,  the  coupties  and 
other  municipal  divisions  are  mere  auxiliaries  of  the  govern- 
ment, established  simply  for  the  more  effective  administror 
tion  of  justice,  and  the  power  of  taxation,  as  confided  to 
them,  is  a  delegated  trust,  and  is  to  be  strictly  construed. 
They  act,  not  by  virtue  of  inherent  power,  but  as  mere 
agencies  of  the  State,*  the  whole  theory  of  our  system  of 
taxation  being  based  upon  the  idea,  that  it  is  prepared  by 
the  representatives  of  the  people,  upon  due  deliberation 
and  reflection,  and  Avhen  thus  prepared  for  State  purposes, 
it  may  be  safely  applied  by  the  counties  and  other  local 
agencies  of  the  commonwealth. 

§  2.  Subjects  of  Taxation.  Primarily  all  property  is 
subject  to  a  just  proportion  of  the  burdens  of  taxation  in  re- 
turn for  the  protection  w^hich  the  State  affords,  but  the  legis- 
lature may  grant  an  exemption  to  certain  classes,  and  such 
grant  may  be  in  the  nature  of  a  contract  and  inviolable.    But 

'  Dunleith  v.    Reynolds,  53    111.  McCormack  v.  Patchin,  53Mo.  33; 

4") ;  In  re  Van  Antwerp,  56  N.  Y.  Weeks  v.  Milwaukee,  10  Wis.  242  ; 

205.  People  v.  Bradley,  39  lU.   130  ;  Ot- 

5  Sherlock    v.   Village    of  Win-  tawa  v.  Spencer,  40   111.  211  ;  At- 

netka,    60    111.    530;  Holbrook   v.  torney-General  v.   Plankroad  Co., 

Dickinson,   46  111.  285  ;  Weeks  v.  11  Wis.  35  ;  Soens  v.  Racine,  10  Wis. 

MUwaukee,  10  Wis.  242  ;  Attorney-  271. 

General  v.  Plankroad  Co.,  11  Wis.  ■*  R.  R.  Co.  u.  Washington  County, 

35.  30  Gratt.  (Va.)  471;  U.  S.  u  New 

3  Peay  v.  Little    Rock,  32  Ark.  Orleans,  98  U.  S.  (8  Otto)  381, 
31 ;  Chicago  v.  Lained,  34  111.  253 ; 


TAXES    AND    TAX    TITLES.  553 

such  grant  must  be  ex])ivssoJ  in  clear  ami  unmistakable 
language,  and  can  not  be  aideci  by  presumption  or  infer- 
ence,' while  all  language  creating  an  exemption  is  to  be 
strictly  construed." 

§  3.  Lien  of  Taxes.  The  lien  for  taxes  attaches  to  all 
land  subject  to  taxation,  annually,  upon  some  day  stateil, 
the  time  being  dilferent  in  nearly  every  State,  and  contin- 
ues until  the  tax  is  paid.'  AVhere,  for  instance,  the  lien 
attaches  on  the  first  day  of  May,  and  propert}'  is  sold  subse- 
ijuent  to  that  date,  it  is  incumbered  by  the  lien,  and  unless 
a  special  exce])tion  is  made  in  the  deed  the  vendor  is  liable 
upon  his  covenants  for  the  pa3nnent  of  the  tax.  It  is  also 
a  familiar  statutory  provision  that  taxes  assessed  on  ]ier- 
sonal  property  of  the  same  owner  become  a  lien  on  his  real 
estate.* 

§  4.  Tax  Titles.  A  tax  title  is  a  purely  technical,  as 
contradistinguished  frum  a  meritorious  title,  and  dejicnds 
for  its  validity  uj)on  a  strict  compliance  with  all  the  re- 
quirements of  law.'  No  presumption  can  be  raised  to  euro 
radical  defects  in  the  i)roceedings,  and  the  ])roof  of  regu- 
larity devolves  on  the  person  asserting  the  title.*  If  the 
land  claimed  under  such  a  title  was  sul)ject  to  ta.xation,  and 
the  proceedings  under  the  law  have  been  regular,  and  the 
owner  has  failed  to  redeem  within  the  time  limited  by  law, 
then  the  whole  legal  and  equitable  estate  is  vested  in  the 
purchaser,  and  a  new  and  })erfect  title  is  established.'     This 

'  Minot  V.  R.   R.  Co.,  18  Wall.  631;  Clmrlcs  r.  WauK'li,  H5  III.  315; 

200;    ButWr's    Apix-al,    73   Pa.  St.  Hewt-s  r.  Rtis,  10  Cal.  2iry,  Rivers 

44S;  R.  R.  Co.  v.  Maguire,  4'J  Mo.  r.  Th<)iiii>s«>n,  43  Ala.  033. 
490,  •  OlivtT  V.  RolfinMon,  .W  .Ma.  40. 

»  Coinmissionors      V.      Drat-kcn-         '  Atkins  w.  Himnari.  2  (film.  (111.) 

ri(l(?<\   12   Kan.    114;  Manf.   Vo.  v.  437:  Smith  r.  Mis.s,r.  17  N.  II.  42<i: 

E;ust  Sa;,'ina\v,  19  Mich.  2.")1(;  Mt-th-  Dimlaji  v.  (lallatin    Co.,  \'}  111.  7; 

o<lirit  Chiinh?-.  ('Iii<a;<().20  III.  4M2.  Jarvis  r.  Peek.  lU   Wis.   74:  ('nun 

•>  r.iiikcit  V.  Wahash  liy.  (  o.,  »«  v.  CottinK.  22  Iowa.  411.     Tho  f.il- 

111.  205.  IouImk    |irin(i|il<-s,    or    rul«»<,    for 

*  Union  TniHt  Co.  v.  W<Imt,  DO  tttiliniL;  thf  valiility  of  tax    titK'H, 

111.  3-1(5.  n|i|K'ar  to  Ik*  fairly  <l<'<lnril>I«'  from 

»Alt<-s  r.    IliiK'klir.  30   111.2(55;  tlw     ri|H>rt«<l     caw-H:    (h    Wh.n. 

Whitmoru  t>.  Larncd,  10  lUjiturWr,  thu  statute-  luukr  whii  h  the  wilo  u 


654  ABSTRACTS   OF   TITLE. 

results  from  the  paramount  authority  of  the  State  to  le\y 
the  tax  ami  coerce  its  payment  by  subjecting  the  pi-opcrty 
to  sale,  yet  owing  to  the  complexity  of  the  procedure  cm- 
ployed,  and  the  careless,  bungling  or  ignorant  manner  in 
which  it  is  often  used,  as  well  as  the  many  grave  ques- 
tions which  may  arise  even  on  ])erfcct  service,  a  tax  title  is 
regarded  as  among  the  poorest  evidences  of  the  ownersliip 
of  land,  and  is  always  taken  with  suspicion  and  viewed  with 
jealousy. 

Though  the  end  to  l)e  attained  by  the  sale  of  the  land,  to 
wit,  the  satisfaction  of  the  levy,  is  the  same  in  every  State, 
j-^et  no  two  States  seem  to  pursue  exactly  the  same  methods 
in  arriving  at  this  end,  but  whatever  be  the  methods 
employed,  there  must  at  least  be  a  valid  jutlgment  or  corre- 
ponding  feature;  a  valid  precept  authorizing  the  sheriff, 
auditor,  or  other  officer  to  make  the  sale;'  and  a  proper  con- 
ve3'ance  of  the  land  from  such  officer  or  other  authorized 
person.  These  are  essential  to  the  prima  facie  validity  of 
the  title,  and  none  of  them  can  be  dispensed  with.'  The 
.basis  of  the  title  is,  of  course,  a  legal  tax,  and  no  title  ]iasses 
b}^  a  deed  when  the  whole  or  a??y^«?'^  of  the  tax  on  wliich  it 
was  founded  was  illegal.'  A  sale  of  land  for  taxes  frees  it  in 
the  hands  of  the  purchaser  from  all  liens  or  liabilities  for  taxes 

made  directs  a  thing  to  be  done,  or  suflRcient:  Hall,    J.,  in   Chandler 

prescribes    the    form,    time,    and  v.  Spuai^  22  Vt.  388. 

manner  of  doing  anything,  such  '  The  precept,  though  not  tcchni- 

tliing  must  be  done,  and  in  the  cally  process  within  the  constitu- 

furm,  time  and  manner  prescribed,  tional  provision  reciuiring  all  proc- 

or  the  title  is  invalid;  and  in  this  ess  to  run  in  the  name  of  the  peo- 

respect  the  statute  must  be  strictly,  pie,  performs  the  office  of  an  execu- 

if  not  literally,  complied  with;  (2)  tion,  and  is  the  authority  under 

but    in  determining  what    is  re-  which  tlie  officer  sells:   Eagan  v. 

quired  to  be  done,  the  statute  must  Connelly,  107  111.  458. 

receive  a  reasonable  construction;  '  Holbrook  v.   Dickinson,  46  111. 

and  where  no  particular  form  or  285. 

manner  of  doing  a  thing  is  pointed  *  Dogan  v.  Griffin,  51  Miss.  782; 

out.  any  mode  which  effects  the  McLaughlin  r.  Thompson,  55  111. 

object  with  reasonable  certaiiity  is  219. 


TAXES   AND   TAX   TITLES.  555 

of  previous  years;'  divests  all  jirior  liens  and  incumbrances;' 
bai*s  the  inchoate  right  of  dower;'  and  vests  in  such  pur- 
chaser a  new,  original,  and  unim]>eachablc  title  in  fee  simple.* 
Such,  at  least,  is  the  accepted  doctrine  in  a  majority  of  the 
States,  though  there  are  some  in  which  it  may  not  prevail.* 
§  5.  Mature  of  Tax  Titles— Depeiulont  or  Iii<lepeiid- 
eiit.  A  tax  title,  though  bearing  some  resemblance  to 
titles  derived  under  judicial  and  execution  sales,  differs 
in  this,  that  the  latter  are  strictly  derivative  titles,  and 
dependent  not  only  on  the  legality  of  the  procetlure  of 
transfer,  but  upon  the  acts  of  former  owners.  A  tax  title, 
on  the  contrary,  from  its  very  nature,  has  nothing  to  do 
with  the  previous  chain  of  title,  nor  does  it,  in  any  way, 
connect  itself  with  it.  The  ])erson  asserting  it  need  go  no 
further  than  his  tax  deed,  and  the  former  title  can  neither 
assist  nor  prejudice  him.  The  sale  oi^erates  upon  the  land 
and  not  upon  the  title,  and  it  matters  not  how  many  differ- 
ent interests  may  have  been  connected  with  the  title ;  if  it 
has  been  regularly  sold,  the  property,  accompanied  by  the 
legal  title,  goes  to  the  purchaser.  Ko  covenant  running 
with  the  land,  nor  warranty,  or  other  incident  to  the  title, 
as  a  title,  passes  to  the  purchaser,  but  he  takes  it  by  a  new, 
independent  and  paramount  grant,  which  extinguishes  the 
old  title  and  all  the  equities  de))endent  u[)on  it.*  Tiie  stat- 
ute usually  pronounces  the  new  title  thus  acquired  a  fee, 
but  this  would  legally  follow,  even  though  the  statute  were 

'  Bowman  v.  Thompson,  36  Iowa,  *  Tlie  statute  usually  provides  for 

505 ;    Preston  v.  Van  Gordor,    31  a  fee  simple.     It  is  held  in  several 

Iowa,250;  Knox  f.  Leidgin,  23Wis.  States,  however,  that  the  jcrJintiH? 

292.  of  a  tax  deed  tiikes  only  the  title 

'  Dunlap  t'.  Gallatin  Co.,  15  111.  7;  and  estate  of  the  fonm-r  owner. 

Cram  v.  Cotting,  22  Iowa,  411.  Se<'  Sheaf  r.  Wait.  3U  Vt.  735. 

*  Jones  f.  Devore,  y  Ohio  St.  430.  •  Neiswanj^er  tv  Gwyime,  18 
I»eal  statutes  may  modify  or  Ohio,  74;  do.  15  Ohio,  307;  Hosa  v. 
change  tlie  doctrines  stilted  in  tiio  liarland,  1  IVt.  (5(51;  lilackwocKl  r. 
text.  Van    Vli.-t,    30    Mirh.     120.      See 

*  Turner  v.  Smith,  14  Wall.  553;  l^lackw.  on  Tax  Till.-s  for  a  v.-ry 
0-<terlj«-'rg  v.  Union  TniHt  Co.,  9  elal)orate  discussion,  p.  *o3j  t'i  «ty. 
Clii.  L4'g.  N«'WH.  156;  ScliuelTer  v. 

Pe«jple,  00  111.  179. 


55G  ABSTRACTS    OF   TITLE. 

s'.lcnt,  Avlicre  no  other  estate  is  reserved  in  the  deed.  It 
must  be  understood,  however,  that  the  chiuse  of  the  statute 
Avliich  provides  tliat  a  conveyance  resulting  from  a  sale 
shall  vest  in  the  grantee  an  "absolute  estate  in  fee  simple" 
does  not  mean  that  such  estate  shall  vest  in  the  grantee, 
notwithstanding  the  fact  that  the  law  has  not  been  com- 
jdied  with  in  making  the  sale,  but  refers  merely  to  the 
(juantity  of  the  estate  conveyed  as  distinguished  from  a 
lesser  estate.' 

§  G.  Proceedings  Incident  to  Taxation.  AVlicro  a 
statute  re(|uires  a  series  of  acts  to  Ije  perf(jrmed  before  tlie 
ownei'S  of  ])roperty  are  properly  chargealjle  with  the  tax, 
such  acts  are  conditions  precedent  to  the  exercise  of  the 
power,  and  all  the  requirements  of  the  statute  nmst  be  com- 
plied with  or  the  tax  will  be  invalid."  These  proceedings 
relate  to  the  valuation,  assessment,  listing,  returns,  etc.,  and 
do  not,  as  a  rule,  pro])erly  come  "within  the  scope  of  the 
examiner's  duties.  They  are  not  usually  shown  in  the  ab- 
stract, unless  there  has  been  a  special  direction,  and  when 
required  are  usually  made  the  subject  of  a  separate  and 
special  examination.  Wlien  a  tax  deed  is  relied  upon  as  the 
foundation  of  title,  all  the  antecedent  steps  become  material, 
and  must  be  shown  in  full,  but  this  is  the  only  instance  in 
which  it  is  done.  Mere  irregularities,  not  going  to  the 
groundwork  of  the  tax,  do  not  vitiate  such  proceedings,' 
and  are  cured  by  special  statutes  of  limitation  which  exist 
in  all  the  States.*  The  subject  is  too  vast  to  open,  even  in 
a  general  way,  and  the  reader  must  be  referred  to  technical 
works  on  the  subject. 

§  7.    Description  of  Laud — Assessors'  Plats.    Where 

•  steeple  v.   Downing,    60    Ind.  *  Hewes  v.  Reis,  40  Cal.  225  ;  Riv- 

478.    As  the  statute  provides  the  ers  r.  Thompson,  43  Ala.  683;  Ab- 

title  to  be  passed,  it  also,  as  a  rule,  bott  v.  Doling,  49  Mo.  302. 

states  how  that  title  shall  be  given  ^  R.  R.  Co.  v.  Morris,  7  Kan.  210  ; 

in  regard  to  prior  liens  and  incum-  Greene  v.  Lunt,  58  Me.  518;  Parker 

brances,  and  sometimes  makes  the  v.  Sexton,  29  Iowa,  421  ;  Thatcher 

sale  subject  thereto.    Consult  local  V.  Peojjle,  79  111.  597. 

statutes  for  the  effect  of  tax  deeds  *  See  Thomas  v.  Stickle,  32  Iowa, 

and  the  estate  conveyed.  71. 


TAXES    AND    TAX    TITLES.  557 

lands  are  listed  or  assessed  for  taxation  they  must  ordi- 
narily be  described  by  reference  to  the  government  surveys, 
or,  if  divided  into  lots,  then  by  reference  to  authenticated 
plats.  The  subject  of  private  subdivision  has  already  been 
considered  in  other  parts  of  the  work,  but  there  also  exists 
in  many,  perhaps  all,  of  the  States,  a  method  of  official  sub- 
division for  the  more  convenient  and  accurate  purposes  of 
taxation.  The  power  to  make  these  subdivisions  is  usually 
delegated  to  the  assessor  and  is  only  to  bo  exercised,  as  a 
rule,  when  such  land  can  only  be  described  by  noting  the 
metes  and  bounds.  The  statute  is  usually  very  explicit  in 
regard  to  assessors'  plats  and  subdivisions,  and  every  material 
requirement  must  be  complied  with  to  give  validity  to  the 
]ilat  or  any  assessment  of  any  of  the  divisions  thereof.  The 
attention  of  the  examiner  is  therefore  called  to  these  plats 
whenever  they  appear  in  the  abstract,  and  the  facts  of  con- 
formity and  sufficiency  of  description  should  be  satisfactorily 
shown.  Both  the  exact  location  and  qu  intity  must  be  man- 
ifest, and  the  plat  will  usually  be  fatally  insufficient  so  far 
as  the  subdivision  of  the  tract  for  the  purpose  of  descrii)ti()n 
of  its  parcels  for  taxation  is  concerned,  if  wanting  in  these 
particulars.' 

^  S.  Sale  for  N()n-])ayni(Mit.  Taxation  is  regulated  by 
statute.  Ijut  the  right  is  inherent  in  the  government,  and 
while  summary  remedies  are  given  l>y  law,  yet  taxes  whrii 
a.ssessed  i)ecome  a  ]>ers(>nal  del)t,  to  be  collecteil  by  any  of  the 
loiral  metiiods  incident  to  same,  siiould  the  <rovernment  choose 
to  resort  to  such  a  remedy."  The  methods  employed  are 
too  various  to  attempt  sjxM.'ial  mention,  every  State  ])rovi(l- 
ing  a  special  procedure  for  this  purpcjse,  and  the  subject  can 
only  be  treated  generally.  A  tax  is  not  an  nidiiiarv  deljt, 
however  ;  it  takes  prec<'denc(^  of  all  other  demands,  and  is  a 
charge  iij)on  tiie  ))ro])(.'rty,  witlxiut  rel'ei-ence  to  the  matter  of 
(jwruM'shij).  Itgrowsout  of  the  j)erj»etual  lien  which  theState, 
by  virtue  of  its  sovereignty,  has  u\n>]\  all  taxahle  lands  within 

'S(H!  IV.pIo  r.  R-Jit.  107  Til.  r,H\.       ham  Co..  15  III.  7  ;    KinUrrt    r.  R\. 
»  M.'ivc.r  of  Jonirsl*«.r<j  v.  McKi-e,  2       Co.,  H^i  III.  VitC). 
Vci-ft.  (Ti-nn.)   107:  Dunlup  v.  Oal- 


55S  ABSTRACTS    OF   TITLE. 

its  limits,  and  the  property  may  he  seized  and  sold,  although 
there  may  be  prior  liens  or  incumljrances  upon  it,  and  pay- 
ment enforced  to  the  exclusion  of  all  other  creditors.' 
"Whatever  be  the  methods  employed,  the  jiroceedings  are 
summary  in  their  nature  and  the  rc(piircments  of  law  must 
be  strictly  pursued  or  the  whole  transaction  will  \>c  void." 
"When  special  proceedings  are  authorized  by  statute,  by 
which  the  estate  of  one  man  may  be  divested  and  transferred 
to  another,  the  owner  has  a  right  to  insist  upon  a  strict  per- 
formance of  all  the  material  requirements  of  the  statute,  espe- 
cially those  designed  for  his  security,  and  the  non-observance 
of  which  may  operate  to  his  prejudice.'  It  is  not  the  policy 
of  the  law  to  deprive  the  citizen  of  his  property  by  sales 
made  on  account  of  the  government  through  its  officers, 
who  have  no  interest  in  the  matter,  without  putting  him 
wholly  in  fault  in  not  complying  with  his  obligations.*  A  syn- 
opsis of  the  special  proceedings  culminating  in  the  sale  is  of 
the  highest  importance  whenever  the  sale  is  relied  upon  as 
the  foundation  of  title,  but  in  ordinary  examinations  tax 
sales  are  shown  rather  in  the  nature  of  incumbrances  on  the 
title  or  cliarges  upon  the  land,  and  it  is  customary  to  show 
only  the  fact,  leaving  the  question  of  validity  to  be  decided 
by  other  and  special  searches.  For  this  purpose  tax  sales, 
when  still  sul)ject  to  redemption  or  not  consummated  by  deed, 
are  shown  after  the  chain  and  under  a  classified  head,  the 
abstract  consisting  only  of  a  brief  mention  of  the  date  of 
sale  and  tax  for  which  the  sale  is  made,  with  reference  to  the 
official  record  ;  a  brief  description  of  the  premises  sold  ;  and 
the  name  of  the  person  to  whom  the  certificate  issued.  For- 
feitures to  the  State  are  treated  the  same  as  tax  sales.  The 
following  will  indicate  the  method  : 

'  Reinhart  v.  Schuyler,  2  Gilm.  Holbrook  v.  Dickinson,  4G  111.  285. 

(111.)  473;  Dunlap  v.   Gallatin  Co.,  *  Rivers    v.   Thompson,   43  Ala. 

15  111.  7,  633.  The  lien  of  taxes  is  piirely  legal 

'  Charles  v.   Waugh,  35  111.  315  ;  in  its  character,  the  creature  of  the 

Cahoonu.  Coe,  57  N.  H.  556;  Clarke  statute,  not  arising  upon  contract, 

V.  Rowan.  53   Ala.    401;  People  v,  and  can  be  enforced  in  the  mode 

Biggins,  96  111.  481 ;  Abbott  v.  Dol-  provided  Isy  the  law  of  its  creation, 

ing,  49  Mo.  302.  and  in  no  other  manner  :  People  v. 

»  Marsh  v.  Chestnut,  14  Dl.  223;  Biggins,  96  111.  481. 


TAXES    AXD    TAX   TITLES.  550 

Tax  Sales. 


Sale  commencing  Sept.   13,  ISSO,  for  special  assessynoits  of 
the  City  of  Chicago. 

Record  37,  page  68. 

Lot  5,  in  East  half  of  Block  S^.,  Canal  Trnstces'  Sub- 
division of  West  half  and  West  half  of  North  East 
quarter  of  Section  17,  Town  39  North,  Bange  IJf.,  East. 
Sold  Oct.  15,  1880.  (  Warrant  No.  4,38 J,  for  tnacad- 
amizing,  etc.,  W.  JacTcson  Street)  to  Asahel  Gage  for 
$8.J^0). 
Sale  commencing  Aug.  S,  1875,  for  State  and  County  taxes 
of  187Ii.. 

Record  22,  page  201. 

Lots  13  and  11^.  in  Bloch  10,  of  RocTcwdVs  Addition 
to  BrocTxton.  Sold  Sept.  25,  1875,  for  State  and  County 
taxes,  1S74-,  to  Asahel  Gage,  for  $51.95. 

AVhere  there  are  forfeitures  as  well  as  sales  these  are 
shown  in  much  the  same  manner. 

§  9.  Forfeitures.  The  class  of  forfeitures  to  which  this 
section  alludes,  is  based  upon  the  principle,  "that  every 
owner  of  lands  holds  his  estate  upon  the  implied  condition 
that  he  will  furnish  a  list  of  his  taxable  estate,  and  ))romptly 
pay  his  share  of  the  common  burdens  assessed  auainst  the 
entire  community;  and  if  he  omits  to  comply  with  the  con- 
dition, and  his  estate  is  offered  at  public  vendue,  and  no  pur- 
chaser can  be  found  for  it,  the  title  is  transferred  IVom  the 
owner  to  the  State,  the  latter  being  always  ready  to  Itid  for 
the  land,  when  no  other  bidder  ap])ears."  '  The  term  "for- 
feit" is  not  always  used,  but  the  elfect  in  every  State,  where 
the  property  passes  to  the  State  in  default  of  purchasers,  is 
a  forfeiture.  A  forfeiture  0])erates  to  divest  the  title  of  the 
ori^dnal  <jwner,  thou'rh  amj)le  'tiine  is  always  allowed  f(»r 
redenjj)tion,and  })urciiasers  of  forfeited  lands,  where  the  law 
has  been  strictly  complied  with,  will  ac(piiro  a  valid  title 
from  the  State. 

'  Bluckw.  Tax  Tit.  NCO;  See  Clery  r.  Hiimiaii,  11  III.   lltO. 


500  AIJSTIiACTS    OF   TITLE. 

Forfeitures. 


Sale  commencing  Sept.  13,  18S0,  for  State  and  County 
taxefi  of  1870. 

Record  23,  page  205. 

Lot  5,  of  JBloch  10,  in  Williarm^'  Sidjdivision  of  the 
North  East  quarter  of  Sectioji  16,  Town  23  North, 
lutnge  14-  East,  loas  forfeited  to  the  State  of  Illinois, 
Oct.  15,  18S0,for  the  non-payment  of  State  and  County 
taxes  ef  1879.     Amount,  $55.00. 

§  10.  Tax  Sales — Tax  Payor  as  Piircliaser.  A  very 
erroneous  opinion  has  gained  currency  in  many  localities 
that  a  purchase  by  one  owning  or  interested  in  the  land 
sold  for  taxes  strengthens  the  title  previously  acquired,  and 
hence  it  is  not  uncommon  to  find  tax  deeds  to  persons 
already  possessing  equities  in  the  property.  Such  deeds, 
however,  are  absolute  nullities,  for  it  is  a  proposition 
beyond  dispute  that  one  whose  duty  it  is  to  pay  a  tax  can  not 
be  a  purchaser  of  property  offered  for  sale  for  the  ]nir])ose 
of  collecting  it.'  The  payment  of  tlie  money,  in  such  case, 
will  l)e  regarded  only  as  a  payment  of  the  tax,  and  not  as  a 
purchase  of  the  property;''  and  tlie  deed,  at  best,  would  evi- 
dence nothing  more  than  that  the  tax  on  which  it  was 
founded  was  satisfied,  the  lien  of  the  State  discharged,  and 
the  estate  restored  from  the  sale,  but  no  new  title  would  be 
transferred  by  it.'  Nor  does  this  principle  apply  only 
where  there  is  a  direct  legal  obligation.  The  party  against 
whom  a  tax  is  assessed  is  directly  liable  for  the  tax,  as  is 
also  a  purchaser*  or  lessee*  who  has  contracted  to  pay  same, 

•  Douglas  V.  Dangerfield,  10  18;  Glancy  v.  Elliott,  14  III.  450; 
Ohio,  152;  Busch  v.  Huston,  755  Middleton  Bank  v.  Bacharach,  46 
111.  343;  Barton  v.  Moss,  33  111.  50;  Conn.  513;  Jolinston  v.  Smith,  70 
Dunn  r.  Snell,  74  Me.  22;  Christy  Ala.  108. 

V.  Fisher,  58  Cal.  250;  Williamson  ^  Gould  v.  Day,  4  Otto  (U.  S.), 

V.  Russell,  18  W.  Va.   612;  Cooley  405. 

on  Taxation,  346;  Blackw.  on  Tax  *  Fitzgerald  v.  Spain,  30  Ark.  334. 

Tit.  400.  '  Waggoner  v.   McLoughlin,    33 

*  Baily  v.  Doohttb,  24  111.  577;  Ark.  201. 
BaUame  v.  Forsythe,  13  How.  (U.S.) 


TAXES    AND    TAX    TITLES.  501 

and  in  these  cases,  where  there  is  a  direct  legal  obligation, 
there  can  be  no  question  about  the  duty.  But  other  ])arties 
may  acquire  an  interest  in  real  estate  who  are  not  directly 
responsible  for  the  taxes,  and  who  enter  into  no  contract  in 
respect  to  them,  yet  may  be  so  situated  that  it  is  their  duty 
to  pay  them.  For  instance,  a  purchaser  of  the  property  or 
of  the  equity  of  redemption  subject  to  a  tax  lien  may  be 
compelled  to  pay  the  taxes  in  order  to  protect  his  own  title. 
Such  a  party  can  not  ordinarily  be  a  purchaser  of  a  tax 
title.  So,  too,  a  mortgagee  is  under  no  legal  obligation  to 
pay  the  taxes,  and  yet  he  may  be  compelled  to  pay  them  in 
order  to  protect  his  mortgage.  Although  there  may  be 
cases  which  hold  that  under  certain  circumstances  he  may 
purchase  a  tax  title,  yet  the  general  rule  is  that  he  can  not;' 
and  for  the  reason  that  it  is  not  necessary  for  him  to  do  so. 
He  may  pay  the  tax  and  the  amount  paid  will  be  added  to 
his  debt,  and  he  will  hold  the  whole  property  as  security 
tlierefor.  In  such  a  case  it  is  unnecessary  to  conqilicate  the 
legal  title  with  a  tax  deed,  and  the  law  will  not  allow  it  to 
be  done.  Nor  does  it  vary  the  case  in  principle  if  the  ]ier- 
son  paying  the  tax  owns  less  than  the  whole  equity. 
Whether  his  interest  be  worth  much  or  little,  whether  he 
owns  the  whole  or  a  part,  can  nudce  no  diirorence.  In 
either  case  if  his  interest  is  worth  protecting  he  will  ))ay 
the  tax,  and  in  neither  case  can  he  purchase  a  tax  title.  All 
such  persons  are  not  capable  of  purchasing  at  a  tax  sak-, 
and  deeds  to  them  convey  no  title.' 

§  11.  Kights  of  Purcliasors.  A  sale  for  taxes  is  not 
subject  to  tiie  rule  that  one  who  ])urcliasc's  dui-iiiLTthe  pend- 
ency of  a  suit  is  held  bound  by  the  decive  that  may  he 
made,*  for  the  lis  pendens  only  relates  to  and  alfects  volun- 

'  Williams  r.  TownsMid,  31  N.  Y.  purcluLse   tlie   |»r<>[K'rty  wlu-ii  sdhl 

411;  Sturdevaiit  r.  Matlier,  2U  Wia.  fur   tax(.'.s.      So   oik*   who   liolils   a 

570.  quJtrlaiia    dei-ii    to   i»ro|M'rty   pre- 

'  Mi<lill«'ton  Sav.  Bank  v.  Barhar-  vioiiHly  coiivfyod     may    |)urclia.Hu 

a<;h,  46  Conn.  513;  Jocks  v.  l>yiT,  Hami' at  tax  sale:  Curtis  v.  Smith, 

81   Ark.   *}-l.     Posw-KHion   und«.*r  a  42  Iowa.  (VMS. 
(\tH't\   whifli  convi-ys    no    inU-rcst  *  Wriglit  v.  WalktT,  30  Ark.  11. 

will  not  ili.s<iualify  the  grantee  to 


502  ABSTRACTS    OF   TITLE. 

tarv  alienations  by  the  di^fendant  ]ien(linf;:  the  action.  It 
h;',s  notliing  to  do  with  })arties  asserting  rights  in(l('])en(ient 
of  and  adverse  to  that  of  the  defenchmt,  and  whci-e  one 
acqnires  title  under  a  sale  for  taxes  he  is  not  bound  by  the 
foreclosure  of  a  mortgage  given  by  a  former  owner  of  the 
land,  and  his  title  will  prevail  against  that  of  the  purchaser 
at  the  foreclosure  sale.'  It  is  a  cardinal  rule,  however,  that 
a  purchaser  at  a  tax  sale  comes  strictly  and  rigidly  within 
the  rule  of  "  caveat  emptor^^ '  but  this  has  reference  to  the 
methods  b}'  which  he  acquires  title,  and  not  to  antecedent 
matters. 

§  12.  Redemption.  The  subject  of  redemption  from 
tax  sales  bears  a  strong  analogy  to  the  satisfaction  and  dis- 
charge of  judgments,  and  raises  many  of  the  same  questions 
in  regard  to  the  method  of  treating  same  in  the  abstract. 
It  is  not  the  usual  custom  of  examiners  to  make  special 
mention  of  a  redemption,  as  the  certificate  of  the  abstract  is 
presumed  to  be  a  sufficient  statement  of  the  condition  of 
the  title  at  its  date.  But  in  view  of  the  current  of  authority, 
which  ever  inclines  to  limit  the  examiner's  liability  to  the 
actual  occurrences  during  the  period  covered  by  liis  search, 
irrespective  of  subsisting  but  previously  contracted  liens,  it 
would  seem  a  far  more  satisfactory  practice,  and  one  tend- 
ing to  greater  certainty  in  arriving  at  conclusions  or  pass- 
ing opinions,  to  show  the  extinguishment  of  any  and  every 
lien  which  former  examinations  may  have  disclosed,  except 
where  this  has  been  effected  by  the  statute  of  limitations. 
From  two  to  three  years  is  the  period  ordinarily  allowed  in 
which  the  owner  or  interested  party  may  discharge  the 
obligation  imposed  by  the  levy  of  the  tax  and  relieve  the 
land  from  its  burden.  During  this  period  the  purchaser  has 
a  contingent  interest,  which,  after  the  day  of  redemption 
has  passed,  may  ripen  into  an  absolute  title.  This  contin- 
gency may  be  defeated  by  payment,  and  when   such  is  the 

'  Becker  v.  Howard,  6  Thomp.  &  -  Hamilton  v.   Valiant,   30   ]\Itl. 

C.  (N.  Y.)  603;  4  Hun  (N.  Y.).  359.       139. 
This   is    sometimes    denied.      See 
Smith  V.  Lewis,  2  West  Va.  39. 


TAXES    AND    TAX    TITLES.  5G3 

case,  it  mil  often  become  as  proper  a  matter  for  special  men- 
tion as  a  release  or  discharge  of  a  mortgage.  "NVliere  the  sale 
and  redemption  both  occur  during  the  period  inchided  and 
covered  by  the  dates  of  the  examination  the  whole  transac- 
tion may  with  propriety  be  wholly  disregarded,  since  it  only 
amounts  to  a  payment  of  the  tax;  but  where  a  former  ex- 
amination discloses  a  sale,  and  a  continuation  is  made  during 
the  redemption  period,  the  lien  in  the  meantime  having  been 
extinguished,  such  fact  should  affirmatively  appear,  and 
should  the  abstract  be  silent  in  this  particular,  a  requisition 
for  further  information  should  be  made  by  counsel  before 
passing  the  title. 

g  13.  Certificate  of  Sale.  Certificates  of  sale  are  rarely 
recorded,  though  they  undoubtedly  vest  in  the  purchaser  an 
equitable  interest  in  the  land  which  entitles  him  to  be  clothed 
with  the  legal  title  at  any  time  after  the  period  of  redemp- 
tion has  expired,  and  before  his  right  has  been  barred  by  the 
statute  of  limitation.'  The  right  to  record  all  such  certifi- 
cates and  assignments  thereof,"  when  such  assignments  are 
duly  sealed,  attested  by  witnesses,  and  ackncnvledged  in  con- 
fonnity  to  law,  is  often  given  by  statute,  and  when  recorded 
in  the  proper  county  they  have  the  same  effect  as  other 
records  therein.  When  found  upon  the  records  they  are 
shoAvn,  if  prior  to  deed,  as  a  lien  or  charge  upon  the  land 
and  after  the  course  of  title  has  been  exhibited  ;  when  fol- 
lowed by  deed  they  are  briefly  noted  in  connection  with  that 
instrument,  either  adversely  or  otherwise.  A  synopsis  of  a 
certificate  of  sale  should  conform  to  the  original,  and  recite 
the  facts  stated  therein.  The  form  will  vary  as  the  certifi- 
cate may  be  made  in  ])ursuance  of  a  judgment,  as  in  Illinois; 
or  by  the  county  treasurer  under  the  law,  without  judgment, 
as  in  Wisconsin.  An  exami)le  of  the  latter  form  is  given. 
The  reader  is  referred  to  illustrations  of  sheritrs  certificates 
in  other  j)arts  of  the  work. 

'  Blackw.  r.n  Tax  Titlos,  •372.  nfT.<(.-.l  in  tlif  hands  of  tlio  tax  piir- 

'  Tlie  aHrtig^nee  of  atax  ciTtiHcato  chaser:    Li^ht  r.  Wi-st.    42   lown, 

liolclh  it  subject  to   all  the  infirini-  l^^  ;    Hi-son-  v.  I)..hli,  unowa.  211. 

tie«  by  which  it  wouhl  have   l»<-eii 


*  *  *  * 


.'•(.l-lr  ADSTKACTS    OF    TITLE. 

IIiKjh   'MeDermott^  Count i/'\       Tax  Certificate. 
']\'i'aKiu'er    of    Kenosha  Dated,  etc. 

Cou7ity,   Wis.,  )■ 

to 
William  Goffe.  J       Said  Treasurer  certifies   that 

he  did,  at  puhllc  auction,  pur- 
suant to  notice  given  as  hy  law  required,  on  May  1,  1SS3,  sell 
to  William  Goffe,  [or  the  county  of  Kenosha,']  the  following 
described  real  estate  {descrihing  same)  for  $6.50,  being  the 
amount  due  for  taxes,  interest  and  charges  on  said  lands  for 
the  year  1SS2,  and  that  said  William  Goffe  {or  assigns)  will 
he  entitled  to  a  deed  of  same  in  three  years  from  date,  ludess 
sooner  redeemed  according  to  law. 

§  14.  Tax  Deeds.  Neither  the  legal  nor  equitable  title 
to  lands  sold  for  non-payment  of  taxes  vests  in  the  purchaser 
until  the  execution  and  delivery  of  the  tax  deed.'  This 
deed  does  not  operate  ipso  facto  to  transfer  the  title  of  the 
owner  as  in  ordinary  deeds  between  individuals,  but  is  the 
last  act  of  a  series  of  proceedings  upon  the  regularity  of 
which  it  depends  for  its  character  and  effect.  It  is  not  title 
in  itself,  nor,  unless  aided  by  statute,  even  evidence  of  it. 
Its  recitals  bind  no  one,  and  it  creates  no  estoppel  upon  the 
former  owncr.^  The  mere  production  of  the  tleed,  in  the 
absence  of  statutory  aid,  creates  no  presum])tion  in  its  favor 
until  all  the  anterior  proceedings  prescribed  by  law  have 
been  affirmatively  shown  to  have  been  complied  with,  when 
it  becomes  conclusive  evidence  of  title  according  to  its  ex- 
tent and  purport.  This  doctrine,  which  has  long  obtained 
in  this  country,  is  based  upon  the  policy  that  it  is  better  that 
the  purchaser  should  lose  the  small  amount  of  his  bid  rather 
than  the  owner  should  forfeit  a  valuable  estate,  where  the 
proceedings  show  irregularity  or  illegality,'  and  the  burden 

'  Stephens  v.  Holmes,  26  Ark.  48;  « Blackw.  on  T;ix  Titles,  *68;  Don- 

Ins.   Co.   V.   Scales,   27   Wis.    640;      ning  v.  Smith,  3  Johns.  Ch.    344  ; 
Bracket  V.  Gilmore,  15  Miim.  245;      Jackson  v.  Morse,  18  Johns.  442. 
Lake  v.  Gray,  35  Iowa,  44. 

«  Blackw.  on  Tax   Titles.  *364 ; 
Jackson  u.  Est}-,  7  "Wend.  148. 


TAXES    AND    TAX    TITLES.  5G5 

of  proving  title  under  tax  deeds  has  been  thrown  npon  him 
who  asserts  such  title. 

§  15.  Coiitiuiied — Statutory  Modilieatioiis.  Though 
the  rule  of  the  conimoulaw,  that  he  whoailirms  the  existence 
of  a  material  fact  must  prove  it,  was  for  many  years  applied 
to  sales  for  taxes  in  all  its  unbending  rigidity  until  the  as- 
tuteness of  judicial  refinement  had  rendered  almost  inoper- 
ative all  legislation  providing  for  such  sales,  a  marked  change 
is  now  apparent  in  many  States.  Stringent  legislation  has 
endeavored  to  counteract  the  tendency  of  judicial  refinement, 
by  declaring  the  operation  and  effect  of  tax  deeds,  and  such 
conveyances  in  a  majority  of  the  States,  when  formal  and 
duly  executed,  are  taken  diS  prima  facie  or  presumptive  evi- 
dence of  the  regularit}^  of  all  proceedings,  from  the  listing 
or  valuation  of  the  land  up  to  the  issuance  of  the  deeds. 
A  few  States  have  gone  so  far  as  to  declare  such  deed 
conclusive  evidence  of  every  matter  or  fact  required  bv  law 
to  make  a  good  and  valid  sale  and  vest  title  in  the  }tur- 
chaser,  except  the  facts  of  exem|)tion,  non-payment,  and 
redem])tion,  and  as  to  those  facts  it  is  made  jn-itna  facie 
evidence.'  This  doctrine,  however,  has  been  expressly  repu- 
diated by  the  courts  as  an  unconstitutional  confiscation  of 
])roperty,  and  the  rule  has  been  announced  tiiat  the  l«'i;isla- 
ture  can  make  a  tax  deed  conclusive  evidence  of  the  regular- 
ity of  prior  proceedings  only  as  to  non-essentials  or  nuittei*s 
of  routine  wiiich  rest  in  mere  expediency.'  P.ut  tlie  owner 
of  pro})erty  can  not  be  ])r<'clud('d  from  showing  the  invalid- 
ity of  a  tax  deed  thereto  liy  jn-oving  tlif  omissiun  ol' any  act 
essential  to  the  due  assessment  of  the  same,  the  levy  of  a  tax 
thereon,  and  the  sale  thereof  on  that  aceount.  As  to  the  )»er- 
formance  of  these  a<;ts,  and  the  facts  necessary  to  constitute 
them,  the  deed  can  only  be  made^^'/v'/z/rt/WcvV  evidence.* 

'  Sf.'O  Gwynne  V.  NfiHwan^C'T,  IS  wlion  omitted:   Marx  r.  llawiliorii, 

Ohio,  4<W;  Allen   v.  Ariiistruiig.  IG  12  Saw.  (C.  Ct.)  :{74. 
Iowa,  WJH.  '  Alli-rw.    Annstroii^;,   1(5    Iowa, 

*  Af-tH  which  nfM?<l  not  have  Ix-cn  .lOM;  Ma<('r<'a<ly  v.  S'xl4iii,  ',"J  Iowa, 

r<-<|iiire(l  in  the  flrht  pla<i---a.s  tlio  !J'»<5;  Raley    »'.  (iiiinii,  7U  Mo.    2(i;i; 

aflWlavit  of  tlieHlwrifrto  the  rl.lin-  Callaiian  v.  Ilnrl.y.    u:i  IT.  H.  :187; 

<|ii'-iit  IJHt    -ami   whirlj  the  N^'IhIji-  iSt4-e|)le  v.  l).>\viii;;,  (J."»  Iii.l.  .')(ll. 
ture  riiav  liv  a  curativj  act  exeuso 


5GG  ABSTRACTS    OF  TITLE. 

It  would  seem  to  be  well  settled,  however,  that  the  le.q-is- 
lature  has  the  power  to  make  a  tax  det'd  jjri ma ^acie  evidence 
of  material  facts,  upon  which  the  right  to  sell  and  convey 
depends,  and  when  this  has  been  done  it  has  the  effect  to 
entirely  change  the  burden  of  i)roof,  relieving  the  purchaser 
therefrom  and  imposing  it  upon  the  person  who  attempts 
to  controvert  the  deed;'  but  whenever  it  is  shown  that  any 
essential  particular  iq.  the  anterior  proceedings  has  been 
irregular,  the  authorities  are  quite  harmonious  in  declaring 
\i^  prima  facie  character  to  be  lost,"  and  when  the  prima 
facie  character,  as  established  by  statute,  is  overthrown,  the 
common  law  principles  stated  in  the  preceding  section,  at 
once  attach,  and  the  person  asserting  the  title  must  prove 
by  satisfactory  evidence  the  regularity  of  the  proceedings. 
The  law  declaring  a  tax  deed  j^rima facie  evidence  of  title, 
does  not  dispense  with  the  statutory  requirements  which 
precede  the  sale,  but  only  shifts  the  burden  of  proof  from 
the  party  claiming  under  the  deed  to  the  party  impeach- 
ing it.' 

§  10.  Formal  Parts.  The  form  and  substance  of  tax 
deeds  are  usually  prescribed  by  statute,  in  whicli  case  a  strict 
conformity  is  required  or  the  deed  will  be  void,'  though  if 
defective  a  new  deed  Avill  usually  issue  to  the  person  entitled,^ 
and  the  deed  will  not  be  avoided  for  slight  irregularities  or 
variances  from  the  statutory  form.'  The  ordinary  incidents 
of  deeds  attach  to  conveyances  under  consideration  and  in 
most  respects  they  stand  upon  the  same  footing  as  deeds 

I  Biscoe  V.  Coulter,  18  Ark.  423;  ^  Chandlers.  Spear,  22  Vt.  388; 
O'Grady  v.  Barnishel,  23  Cal.  287;  Boardinan  v.  Bourne,  20  Iowa,  Kit; 
Watson  V.  Atwood,  25  Conn.  318;  Kruger  v.  Knob,  22  Wis.  429.  Tlie 
Millikai\  v.  Patterson,  91  Ind.  515;  form  in  such  case  becomes  sub- 
Clark  V.  Conner,  28  Iowa,  311;  stance,  and  must  be  strictly  pur- 
Hart  V.  Smith,  44  Wis.  213.  sued:  Atkins  t\  Kinman,  20  Wend. 

»  Sibley  v.  Smith,  2  Mich.  486;  249. 

Graves  v.   Bruen,  11  111.  431;  Tui--  *  Fmley  v.  Brown,  22  Iowa,  538; 

ney  v.  Yeoman,  16  Ohio,  24;  Ray-  Woodman  v.  Clapp,  21  Wis.  35(t. 

burn  V.  Kuhl,  10  Iowa,  92;  Tliomp-  *  Bowman  v.   Cockerill,    6  Kan. 

son  i\  Ware,  43  Iowa,  455.  311. 

»  Williams  v.  Kirtland,  13  Wall. 
306. 


TAXES    AND    TAX    TITLES.  507 

between  individuals.'  To  attempt  an  enumeration  of  the 
special  distinctive  features,  however,  would  be  to  refer  to 
the  statutes  of  every  State  in  the  Union,  and  not  alone  to 
one  but  to  many,  as  few  sul)jects  have  been  so  harassed  bv 
legislative  tinkering,  both  as  to  the  methods  of  sale  and  its 
evidence,  as  the  sale  of  land  for  taxes.  lUit  inasmuch  as 
the  deed  does  not  derive  its  validity  from  its  capacity  as  an 
independent  conveyance  to  transfer  the  estate  described  in 
it,  but  from  the  existence  of  a  power  and  com])liance  Avith 
])rescribed  conditions,  it  should  show  upon  its  face  an 
acknowledgment  of  the  power  in  pursuance  of  which  it 
purports  to  have  been  executed.'  This  rule  is  of  uniform 
operation  everywhere.  All  tlie  recitals  provided  by  law, 
which  go  to  shoAV  full  compliance,  are  necessar}'  and  in- 
tegral parts,  and  the  failure  to  recite  any  one  of  the  pre- 
requisites to  a  valid  sale  will  raise  a  presumption  that  the 
omitted  requirement  was  not  complied  with.'  The  execu- 
tion and  authentication  are  purely  matters  of  local  statutory 
regulation.  The  later  forms  of  tax  deeds  ]n-escr  be  1  i\v 
statute  are  very  short  and  concise,  and  the  recitals  coniined 
to  a  few  material  points,  while  their  legal  effect  and  o])ei-a- 
tion  is  expressly  defined  as  in  case  of  deeds  between  indi- 
viduals after  statutory  forms.     The  execution  of  the  deed 

'  Blakely  v.  Bestor,  13  111.  708.  or  recital  as  to  how  he  exenited 

The  construction  of  a  tax  deed  in  a  power,   must  set  out  the  facts 

respect  to  the  description   of  the  and  tlie  manner  in  wliicli  he  per- 

land  conveyed  must  be  the  same  formed  the  act,  and  let  the  court 

as  if  such  description  were  used  in  determine   whether    tliey  comj»ly 

a  deed  between  private  indiviiki-  with  or  in  accordance  with   the 

aLs.     Tlie  doctrine  of  strict  con-  law.      Tlie    sale    of    projierty   for 

struction,  as  apjilied  to  the  execu-  taxes  is  an  cv  parte  pnn-ci'dinji. 

tion   of   naked    statutory   ixjwers,  Tlie  oflicer  acts  at  his  own  juril, 

has  no  ai)i)lication   in  sucli  case:  and  nmst  perform  every  pn'n<|ui- 

lilaktly  V.  lUsUiV,  V.i  III.  708.  site  re<iuirfd  \>y  statuti"  Infon'  the 

'  H]a<kw.  Tax  Tit.  *'>iW;  Jackson  title  of  a  cilizfii   to  his   property 

V.  liolwrts,  11  Wend.    ILTj;  Toliiian  can  l)e  taken  from  him.     The  deed 

V.  Kmerson,  4  Pick.  KM).  must  show  aflinnatively  that  tin- 

•  Lr>ng  V.  Hurnett,    KJ  Iowa,  20;  hiw  Iuls  In-en  compiitHi  with  in  all 

Lain  v.   Cook,  l.'i  Wis.  410;  I^irjjo  partieulars:    Spurloek  r.  Allen,  •('.» 

V.    Fisher,  49  Mo.  .'m.     A  minis-  Mo.  17H;  AblnUt  r.  I)<.linK,  41)  .Mo. 

t<Tial  oflicer,  in   makin;:^  a  return  SfVi;  Annan  f.  Haker,  W)  N.  H.  ICl. 


Tax  Deed. 
Dated ^  etc. 

.;i 

*           * 

-:<■ 

w              * 

* 

50S  ABSTRACTS    OF    TITLE. 

is  conliilcd  to  the  county  clerk,  or  other  officer  having  the 
custody  of  the  tax  records.  A  statutory  deed  as  prescribed 
in  Illinois  and  many  of  the  "Western  States  may  be  shown 
in  the  abstract,  as  follows : 

E.F.C.KhMe,'Covntij\ 

Cle/'k  of  Cook  Co.,  1 11.^ 

to 

Jlirani  Johnson. 

Doc.  203,073. 

Recites,  that  at  a  j^M'ig  sale  of 
real  estate  for  non-payment  of  taxes,  made  in  the  county 
aforesaid  on  Oct.  1'2,  1876,  the  following  described  real  estate 
was  sold,  to-wit:  [describing  same]  and  same  not  haoing  been 
redeemed  from  said  sale,  and  it  appearing  that  the  holder  of 
the  certificate  of  purchase  has  complied  with  the  law  neces- 
sary to  entitle  him  to  a  deed  of  said  real  estate: 

Therefore,  said  county  clerk,  in  consideration  of  the  prem- 
ises and  by  virtue  of  the  statute,  grants  and  conveys  to  said 
second  party  the  real  estate  hereinbefore  described,  subject  to 
any  rcdemjjtion  pi'ovided  by  law. 

Signed  by  said  clerk,  and  the  seal  of  the  County  Court  af- 
fixed. 

Acknowledgment. 

Inasmuch  as  the  deed  is  statutory  and  can  only  be  in  one 
forHi,  a  shorter  method  is  sometimes  atlopted,  which,  after 
the  formal  parts  above  shown,  would  read  somewhat  in  this 
manner : 

Conveys  {loith  other  jyroperty)  Lot  56,  in  Block  ^,  in  Canal 
Trustees'  Subdivision  of  the  south  east  quarter  of  Section  87, 
T.  39,  N.  R.  U  ^.^  Cook  Co.,  Ills.,  sold  Oct.  12,  1876,  recit- 
ing sale  of  same  for  non-payment  of  taxes. 

§  17,     Effect  of  Deed  as  Evidence.    The  form  last  con- 

'  Where     the     county    is     the      count}'  clerk  may  be  shown  in  the 
grantor,  it  must  be  named  as  such,       execution, 
wliile    the    procurement    of    the 


TAXES    AXD    TAX    TITLES.  5G9 

sidered,  and  which  will  not  vary  materially  from  that  now 
in  general  use  where  a  statutory"  form  is  i^rescribed,  is  very 
meager  in  recitals.  Its  elfect  as  evidence  is  dependent  on 
the  statute,  which  has  made  it  prima  facie  evidence,  in  all 
controversies  and  suits  in  relation  to  the  right  of  the  pur- 
chaser, or  those  claiming  under  him,  to  the  property  thereby 
conveyed,  of  the  following  facts :  That  the  property  con- 
veyed was  subject  to  taxation  at  the  time  the  same  was 
assessed,  and  had  been  listed  and  assessed  in  the  time  and 
manner  required  by  law;  that  the  taxes  or  assessments  were 
not  paid  at  any  time  before  the  sale;  that  the  property  had 
not  been  redeemed  from  the  sale  at  the  date  of  the  deed; 
that  it  was  advertised  for  sale  in  the  manner  and  for  the 
length  of  time  required  by  law;  that  it  was  sold  for  taxes 
or  special  assessments,  as  stated  in  the  deed;  that  the 
grantee  in  the  deed  was  the  purchaser  or  assignee  of  the 
])urchaser;  that  the  sale  was  conducted  in  the  manner  re- 
(piired  by  law.'  In  addition,  any  judgment'  for  the  sale 
of  real  estate  for  delinquent  taxes  estops  all  parties  from 
raising  any  objections  thereto  or  to  a  tax  title  based  thereon, 
which  existed  at  or  before  the  rendition  of  such  judgment, 
and  could  have  been  presented  as  a  defense  to  the  apj)lica- 
tion  for  such  judgment  in  the  court  wherein  the  same  was 
rendered,  and  as  to  all  such  (juestions  the  judgment  itself  is 
declared  to  be  conclusive  evidence  of  its  regularity  and 
validity  in  all  collateral  proceedings,  exce]>t  in  cases  where 
the  tax  or  assessment  has  been  i)aid,  or  the  ])rojK'rty  was 
not  liable  to  the  tax  or  assessment.  The  effect  of  statute's 
similar  to  the  foregoing  and  of  such  statutes  as  have  i)ecn 
«Miacted  U)  (piiet  tax  titles  and  secure  the  property  conveyed 
l)V  tax  deeds,  has  been  to  give  staliility  to  such  <leeds  and 
remove  the  chances  of  n-investure  in  the  original  owner. 
Yet  even  in  the  face  of  such  stiitutes  the  courts  still  cling 
to  the  former  d(X3trines  in   this  respect  :nid   ciitically   in- 

'  R.  S.  111.  1H71,  Chap.  120;  H.  S.  county    trciiHtircr,   or  Horiic    tithi-r 

WiH.  1H7H,  Cliap.  50,  and  hi-c-  K.  S.  (IfHitriiatcd  linicir.  ih  ^'iviii  |m.wi  r 

liid.  lK7fi,  12H.  to  wll  laixls  ritiini<«la.H<l<'Iiii<|ii«'iit 

'  No  application  for  juilf^nu-nt  ih  after  notice  luu*  In-cn  given. 
rwiuire<l   in  many  StaU*,  l»ut  liic 


570  ABSTRACTS    OF    TITLE. 

spect  deeds  wlicn  olTered  in  support  of  title,'  and  where  a 
deed  is  void  upon  its  face,  as  when  tlicrc  is  a  want  of  ])ower 
on  the  part  of  the  officer,  or  where  there  is  included  in  the 
amount  of  the  sale  that  for  which  the  land  could  not  be 
sold,  and  which  is  entirely  unautliorized,  it  has  been  held 
not  to  divest  the  ow^ner  of  his  title  to  the  land,  even  though 
the  special  limitation  of  the  statute  has  run  in  favor  of  such 
deed.'  In  respect  to  the  description  of  the  land  conveyed, 
a  .tax  deed  is  governed  by  the  same  rules  of  construction  as 
other  deeds."" 

§  17.  Tax  Deed — Possession — Limitation.  Radical  de- 
fects in  tax  sales  and  resulting  conveyances  may  be  rem- 
edied in  many  of  the  States,  by  compliance  with  curative 
statutes  which  provide,  that  where  purchasers  unite  posses- 
sion and  payment  of  taxes  for  a  definite  period  to  the  tax 
deed,  an  unimpeachable  title  inures  to  such  purchaser;  and 
this,  even  though  on  its  face  the  deed  shows  that  the  sale 
was  irregular,  if  there  is  nothing  to  charge  the  purchaser 
with  actual  bad  faith.'  Good  faith  is  always  presumed  until 
the  contrary  is  made  to  appear,  and  is  imported  by  the  deed 
itself.'  Where  the  holder  of  the  tax  title  has  become  entitled 
to  the  protection  of  the  statute,  all  questions  as  to  the 
regularit}'  of  the  tax  proceedings  are  set  at  rest,  exce[)t, 
perhaps,  those  which  concern  the  power  and  jurisdiction  of 
the  taxing  officers  or  the  liability  of  the  land  to  taxation. 
The  tax  deed  then  becomes  conclusive  evidence  that  the  taxes 
were  pro})erly  levied,  and  that  all  the  requirements  of  law 
were  complied  with."     But  where  a  deed  discloses  on  its  face 

•  A  statute  which  makes  a  tax  Reporter,  37;  Knox  v.  Cleveland, 
deed  conclusive  evidence,  is  in  der-  13  Wis.  245.  But  see  Dalton  v. 
ogation  of  the  common   law  and      Lucas,  63  111.  337. 

must  be  strictly  constraed  :  Gavin  ^  Blakely  v.  Bestor,  13  111.  708. 

r.    Shuman.  23  Ind.  32;    and  see  "  Dalton  v.   Lucas,    63  111.    337. 

Beekmanr.  Bigham,l  Seld.  (N.  Y.)  Compare   Bowman  v.   Wettig,  39 

;366;  McCready  ?;.  Sexton,  39  Iowa,  111.  416;  and  see  Geekie  v.   Kirby 

356;     Cooley    on    Taxation,     356;  Carpenter  Co.,  9  Reporter,  37. 

Blackw.  on  Tax  Tit.  79.  *  Dickenson  v.  Breeden.  30  111.279. 

*  Annan  v.  Baker,  49  N.  H.  161;  ^Knox  v.  Cleveland,  13  Wis.  245. 
Geekie  r.  Kirby  Carpenter  Co.,   9 


TAXES    AND    TAX    SALES,  571 

that  it  is  illegal,  and  has  been  executed  in  violation  of  law, 
a  statute  of  limitation  can  not  be  broug-ht  in  to  aid  its  validity.' 
Theconstitutionality  of  special  statutes  providing  for  a  shorter 
period  than  that  provitled  in  the  general  statute  of  limita- 
tions has  been  the  subject  of  much  debate,  and  is  not  yet  a 
settled  question;  but  there  can  be  no  doubt  that  a  defective 
deed,  though  invalid  as  a  conveyance,  will  yet  be  admissible 
as  color  of  title,  and  when  followed  by  actual  adverse  posses- 
sion will  set  the  statute  in  operation.'' 

§  IS.  Tax  Abstracts.  Whenever  a  tax  deed  is  relied  on 
as  a  foundation  of  title  which  is  independent  of  and  adverse 
to  all  other  titles,  particularly  that  of  the  person  who  was  last 
seized  of  the  fee,  a  full  exposition  of  the  method  by  which 
the  right  was  acquired  is  an  essential  preliminary  to  demon- 
strate the  validity  of  all  succeeding  conveyances.  The  tax 
deed,  unaided  by  statute,  is  not  sufficient  to  demonstrate  title, 
though  it  may  be  irrhna  facie  evidence  of  such,  but  the 
prior  steps  must  be  shown  and  all  the  requisites  necessary  to 
a  complete  and  perfect  title  under  the  statute  must  be  fully 
and  succinctly  stated.'  An  al)stract  of  a  tax  title  may  consist 
of  a  synopsis  of  the  proceedings  from  the  listing  or  assess- 
ment to  the  sale  and  issuance  of  deed,  with  all  the  material 
matters  copied  in  full;  or  if  so  directed,  a  narrative  statcmriit 
of  what  was  done,  the  times,  manner,  place,  etc.;  but  all  sutli- 
ciently  explicit  to  enable  counsel  to  see  that  every  material 
step  has  been  taken,  and  that  in  a  proper  and  legal  maiiiu'r. 

'  Shoat  r.  Walker,  CKan.  C,j.    In  40:{;  WasJihiirn  v.  Cutl.T.  17  Minn, 

this  f.'Lse  the  law  under  wliich   the  3t)l :  Wiii^'  v.  Hall,  44  Vt.    UN. 

deed  waw  isHU»'<I  ha<l  Ix^en  repealed  ■''  yiv.  IJlackwell  in  his   \V(irk    on 

prior  to  such  Lssue:     Compare  Dal-  Ta.\  Titles  j^ives  some  very  valuahle 

ton  V.  Luca«,  63  111.  337.  forms  for  an  ahstraot  of  this  ehar- 

'  Dillin^chani  v.  Urown.   38   Ala.  aeter.     See  Illaekw.    un   Tax   Tit. 

813;  Chupmuu  v.  Templeton,  53  Mo.  Api>eudLs. 


CHAPTER  XXX. 


DESCENTS. 


g  1.     Title  by  descent.  §  16. 

2.  N;iture,  operation,  and  inci- 

dents of  the  title.  17. 

3.  Inlicritance  as  dependent  on  18. 

seizin.  19. 

4.  Heirship,  its  rights  and  priv-  20. 

ileses.  21. 

5.  The  line  of  succession. 
G.     General  rule  of  descents.  22. 

7.  The  right  of  representation. 

8.  Preferences.  23. 

9.  Who  may  take  by  descent — 

aliens.  24. 

10.  Continued — Adoptive    heirs.  25. 

11.  Ancestral       estates  —  Half         26. 

blood. 

12.  Surviving  consorts.  27. 

13.  Cbparcenei-s. 

14.  What  descends.  28. 

15.  How  affected    by  ancestral 

covenants. 

§  1.  Title  by  Descent.  The  best  known  but  least 
understood  title  is  that  which  the  law  raises  for  the  heir 
upon  the  death  of  the  ancestor.'  It  is  called  title  by 
descent,  and  though  for  practical  purposes  it  is  regarded  as 
a  new  title  springing  from  the  death  of  the  ancestor,  and 
when  asserted  must  be  so  proved,  vet  in  reality  it  is  but  a 
continuation  of  the  ancestor's  title,  which  the  law  casts 
upon  the  heir  at  the  moment  of  the  ancestor's  death."     The 


Liability  for  ancestral  cove- 
nants. 

Creditor's  liens. 

E(iuital)le  conversion. 

Proof  of  heirship. 

Proof  of  a  death. 

Continued  —  Official  regis- 
traticm. 

Continued  —  Probate  of 
death. 

Proof  of  birth  and  legiti- 
macy. 

Validity  of  descents. 

Abstract  of  descents. 

Continued  —  Probate  pro- 
ceedings. 

Settlement  without  admin- 
istration. 

Escheat. 


'  The  term  "  ancestor,"  when 
used  with  reference  to  the  descent 
cf  real  propert}',  embraces  all  per- 
sons, collaterals  as  well  as  liaeals, 
through  whom  an   inheritance  is 

(572) 


derived :    Wheeler  v.  Clutterbuck, 
52  N.  Y.  67. 

■^  Hopkins  v.  McCann,  19  111.  113; 
IMarshaU  v.  Rose,  86  111.  374. 


DESCENTS.  673 

heir  is  regarded  in  law  as  a  legal  appointee  to  receive  the 
title,'  and  this  appointment  he  can  neither  disclaim  nor 
avoid.'  Whenever  the  death  of  any  person  is  shown,  until 
rebutted,  the  presumption  is  that  he  died  intestate,'  and 
that  his  heirs  take  his  estate  under  the  laws  of  descent.' 
Posthumous  children  take  in  all  respects  as  though  they 
had  been  born  in  the  life-time  of  the  intestate." 

§  2.  Nature,  Operation  and  Incidents  of  tlie  Title. 
The  title  of  an  heir  is  not  so  much  an  acquisition  as  a  suc- 
cession. The  death  of  the  ancestor  does  not  create  a  title, 
but  rather  contirms  in  the  heir  that  which  was  previously 
inchoate,  uncertain  and  defeasible.  "  An  estate  of  inlieritanc  •. 
under  the  feudal  law,"  says  Mr.  Bingham,"  "  existed  onl}-  in 
the  contract  between  the  lord,  for  himself  and  his  heirs  on 
the  one  side,  and  the  vassal,  for  himself  and  his  heirs  on  the 
other.  The  one  contracted  that  the  other  might  have  the  pos- 
session and  occupation  of  certain  lands,  usually  upon  the 
condition  of  rendering  in  return  therefor  certain  rents  and 
services,  which  the  latter  agreed  to  pay  and  perform.  The 
heirs  of  each  purty  were  expressly  namad,  and  regarded,  in 
the  eyes  of  the  law,  as  parties  to  the  contract;  and,  when 
the  original  parties  died,  the  heirs  became  the  real  and  acting 
parties  to  the  contract;  and  so]iarties  continued  to  succeed 
each  other  from  one  generation  to  another,  so  long  as  there 
were  heirs  capable  of  becoming  parties.  This  contract  right 
of  possession  of  the  lands  constituted  what  is  known  in  the 
law  as  an  estate  of  inheritance,  or  an  estate  in  fee;  and  the 
succession  of  one  person  on  the  death  (jf  another,  is  what, 

•Coke  Lit.  191.  will  or  not:    See  X.  Y.    Civ.    Co. 

»  Wms.  Keal   Prop.  7.j;  2  Black.  Proe.  S:-  2r)14. 

Com.  201;  3  Wasli.  Real    Prop.    0;  'Lyon  v.   Kain,  80  HI.    nr,:.     1„ 

MfKjre  V.  Chamller,  59  III.  4<)().  all  cases    of  intesUicy  tin?   Ux   rci 

'The  word  "intestate"  pro|M'rly  />i7fr  j^ovenm  tlie  descent :    Linj^en 

Bi^Tjifi*^  a|MTrton  who  died  without  v.  Linj^'en,  4.'i  .\Ia.  110. 

leavinj^  a  will:  l)ut  wlicre  it  is  used  »  Smith  r.  McConncll,  17111.  l.Ti; 

with  rt-s\>4itU>  particular  property,  Sansl)erry  v.  .MclMroy.O  lhi>h(Ky.) 

it  Hij^ifieH  a  fM-rson  who  died  with-  'IVK 

out  efTectualiy    dihiMwinK  of  that  •  Hing.  on  De«rontfl,  2;  and  wo 

projrfTty  hy  will,  wlnthtT  he  left  a  \Vatk.  on  Dcscints,  Cj. 


574  ABSTRACTS    OF    TITLE. 

in  more  recont  times,  is  said  to  be  the  acquisition  of  title  by 
descent."  The  rules  governing  the  method  of  descent  and 
the  classes  of  heirs  who  shall  take,  and  the  order  which  they 
shall  take,  have  l)een  many  times  changed;  the  nature  of  the 
estate  has  been  enlarged;  the  right  of  alienation  during  lite 
and  disherison  after  death  has  been  given  to  the  ancestor ; 
the  estate  may  also  be  diverted  from  the  heir  to  satisfy  the 
ancestor's  debts;  yet  the  fundamental  princii)le  of  inheritance 
has  remained  practically  unchanged.  The  contract  on  the 
part  of  the  State  as  evidenced  by  the  original  grant  still  is, 
that  the  grantee  and  his  heirs  may  hold,  possess  and  enjoy 
the  land,  and  on  the  death  of  the  ancestor  the  heir  succeeds 
to  his  rights  in  virtue  of  the  original  agreement,  as  strictly 
as  though  the  right  or  power  of  alienation  did  not  exist.' 
The  estate  held  by  this  title  possesses  none  of  the  attributes 
of  the  ancient  feudal  estate,  however,  but  is  entire  in  the 
ancestor  and  his  heirs,  with  no  reversion  or  other  feudal 
incident.' 

§  3.  Inheritance  as  Dependent  npon  Seizin.  It  was 
a  primal  rule  of  the  common  law  that  no  person  could 
inherit  real  estate,  unless  he  was  heir  to  the  person  last 
seized.  Under  the  application  of  this  rule  it  was  not  suffi- 
cient to  be  heir  to  the  person  who  last  had  the  right  to  the 
land,  but  not  the  actual  seizin.  This  rule  grew  out  of  the 
feudal  doctrine,  which  required  the  heir  to  be  of  the  blood 
of  the  first  purchaser,  and  the  seizin  of  the  last  possessor 
was  regarded  as  presumptive  evidence  of  this  fact."  The 
rule  was  subject  to  some  exceptions  in  England,  and  it 
would  seem  that  in  this  countr}'^  it  has  never  been  adopted 
in  a  majority  of  the  States,  and  in  the  others  has  been 
expressly,  or  impliedly  abrogated,  and  every  possible  right 
or  title  which  the  ancestor  may  have  had  in  land,  whether 
accompanied  by  actual  seizin  or  possession,  or  not,  is  ren- 
dered transmissible  by  inheritance,  with  the  exception  of 
estates  for  years,  which  are  regarded  as  chattels,  and  estates 

'  Bing.  Descents,  3.  '  Co.  Lit.  14;  Watk.  on  Desc.  65. 

»  Haynes  v.  Bourn,  42  Vt.  686; 
^Vallace  v.  Harmstad,  44  Pa.  St. 
429. 


DESCENTS.  575 

for  his  own  life.'  The  word  "seizin"  is  now  eqnivalent  to 
"  ownership,''  and  though  the  term  is  still  retained  both  in 
the  statutes  and  the  language  of  the  courts,  its  legal  sig- 
nificance does  not  extend  further  tlian  above  stated,  and  is 
in  no  way  dependent  upon  possession.  Every  right  or 
interest,  legal  or  equitable,  to  which  the  intestate  was  in 
any  manner  entitled  at  his  decease,  except  estates  which 
come  within  the  definition  of  chattels  real,  are  valid  sub- 
jects of  descent. 

§  4.  Heirship— Its  Bights  and  Privilo2:os.  The  title 
of  an  heir  is  held  in  his  own  right,"  subject  only  to  the  pay- 
ment of  the  debts  of  the  ancestor,'  or  the  fulfillment  of  his 
covenants,*  and  though  he  may  afterward  be  divested  by  the 
decree  of  the  probate  court  and  sale  by  the  administrator, 
yet  until  such  contingency,  he  is  the  owner,  and  entitled  to 
all  rents,  profits  or  other  beneficial  incidents  flowing  from 
the  land.'  Subject  to  the  lien  of  the  creditors,  he  may 
make  any  disposition  of  the  land  he  may  choose,  and  after 
due  probate  and  administration,  together  with  an  extin- 
guishment of  the  debts,  the  title  becomes  perfect  in  him  or 
his  assigns.'  He  is  favored  by  the  law,  and  his  inheritance 
is  never  defeated  except  by  the  clearest  proof  of  intention 
on  the  part  of  the  ancestor,  and  although  he  is  ex])rcssly 
excluded  by  the  terms  of  a  will,  yet,  unless  some  valid  and 
effectual  disposition  of  the  land  is  made  to  some  other  per- 
son, it  descends  to  him  by  operation  of  law,  and  in  case  of 
an  invalid  or  insullicient  devise,  he  takes  in  ]nvferenco  to 
the  residuary  densee.' 

§  5.  The  Line  of  Succossion.  The  law  invests  tlie  heir 
with  the  title  of  the  anccstoi-,  Init  it  also  dcsignati^s  who  is 
to  be  that  heir,  and  in  this  respect  is  rigid,  arbitrary  and 

'  Kent   Com.    888;    Jackson    v.  Cockinl  r.  Cohinan.  55  Aln.  583. 

IlendrifkH.  3  John,  Ca«.  214;  Hatca  *  Miller  r.  Hlnlsoc,  (H  Mo.  90. 

r.  .Slira.dir,  13  Jolin.  260;  3  Walk.  »  Foltz  r.  I'rous.',  17  III.  4S7. 

(Ohi(j)   '•V-i'-i;  Williuiiifl  u.  Aniory,  14  '  VaiiHyckli-f.  HiclianlHnii,  13  III. 

Mjihh.  20.  171;  Austin  r.  Hail.-y.  37  Vl.  21l». 

'  Walil.ri.lKf  r.  Day,  31  111.  37».  '  Ha.\t<in  r.  C\.rHc.  2  Marl).   Ch. 

»  FolU   V.    I'rouhe,    17    111.    4«7;  500;  Kobtvelt  v.  Fullon,  7  Cow.  71. 


5TG  Ar.STKACTS    OF    TITLE. 

unyielding.'  Tiie  common  kxAV  canons  of  descent'  have  no 
a])])lication  in  the  United  States,  but  rules  have  been  estab- 
lished in  every  State  that  regulate  the  line  of  succession 
and  declare  who,  under  certain  conditions,  shall  be  the  heir. 
Succession  in  the  United  States,  as  in  England,  follows  the 
line  of  consanguinity,'  except  where  the  surviving  husband 
or  wife  is  allowed  a  participation  as  a  successor,  and  a  person, 
to  successfully  establish  his  claim  of  title,  must  bring  him- 
self within  one  of  the  classes  prescribed  by  the  statute,  as 
well  as  show  that  no  nearer  degrees  of  kindred  exist 
which  by  statute  would  defeat  the  claim  which  he  asserts. 
§  6.  General  Rule  of  Descents.  AVhile  there  is  a  sad 
lack  of  harmony  in  the  statutes  of  descent  of  the  differ- 
ent States,  which  not  only  prevents  the  formulation  of  a 
positive  rule,  but  also  any  intelligent  method  of  general 
treatment,  aside  from  a  summar}'-  of  each  State  in  detail,  it 
may  be  stated  generall}^  that  five  well  defined  principles  rel- 
ative to  the  succession  are  discernible.  The  descent  in  ac- 
cordance with  these  principles  is  as  folloAvs :  Eeal  estate  of 
an  intestate  descends  (1)  to  his  lineal  descendants,  except 
where  a  surviving  consort  is  allowed  to  participate;  (2)  to 
his  father,  varied  in  some  cases  by  a  participation  of  broth- 
ers and  sisters  ;  (3)  to  his  mother,  varied  as  before  by  col- 
lateral participation  ;  (4)  to  his  collateral  relatives ;  and  (5) 
to  the  State  by  escheat.  These  five  elementary  principles 
are  covered  by  a  network  of  conditions  and  provisos,  dilfer- 

'  Tyler  v.  Reynolds,  53 Iowa,  14G.  sliould  descend  to  tlie  collateral  re- 
'  There  were  seven  common  law  lations,  being  of  the  blood  of  the 
canons  of  descent  to  the  effect :  1,  first  purchaser,  subject  to  the  three 
that  inheritance  should  always  de-  preceding  rules  ;  6,  the  collateral 
scend  lineally,  and  never  ascend  heir  of  the  person  last  seized  must 
lineally;  2,  that  males  are  always  be  his  next  collateral  kinsman  of 
preferred  to  females;  3,  of  two  or  the  whole  blood  ;  7,  in  collateral 
more  males  in  equal  degi-ee,  the  inheritances,  the  male  stock  should 
eldest  only  should  inherit,  but  be  preferred  to  the  female,  unless 
females  all  together;  4,  that  lineal  where  the  lands  had,  in  fact,  de- 
descendants  in  infinitum,  of  any  scended  from  a  female:  2  Black, 
person  deceased,  should  represent  Cora.  208,  234. 

their  ancestor  ;  5,  on  failure  of  lin-  ^  See  Table  of  Consanguinity,  on 

eal    descendants,   the   inheritance  page  34  of  this  work. 


DESCENTS.  0  ^  » 

1112:  more  or  less  in  every  State,  and  the  application  of  these 
comlitions  governs  the  descent,  and  directs  it  into  some  one 
of  the  channels  above  enmueratcd.  In  all  cases  not  provitled 
for  by  the  statute,  the  inheritance  descends  according  to  the 
course  of  the  common  law. 

§  7.  The  Right  ol'  Representation.  This  is  the  right 
of  the  lineal  descendants  to  take  the  portion  which  their 
ancestor  would  have  taken,  and  is  called  iidieritance  j)c/' 
stirpes.  It  is  a  statutory  right,  and  by  reason  of  the  diver- 
sity of  the  statutes  of  the  ditferent  States,  no  positive  rule 
can  be  stated.  Generally,  if  one  of  several  children  shall 
have  died  before  the  ancestor,  the  heirs  of  such  child  will 
take  the  portion  Avhich  would  have  descended  to  it  if  it  had 
survived  the  ancestor,'  a,nd  the  same  rules  ajiply  for  the  tle- 
termining  who  are  the  heirs  of  such  child,  as  in  any  other 
case  of  descent.  In  a  few  States,  where  an  intestate  leaves 
grandchildren  only,  they  all  take  per  cajfii'a,  or  in  their  own 
right,'"'  but  as  a  rule  of  more  general  observance,  the  lineal 
descendants  rei)resent  onlv  their  ancestor.' 

§  8.  Preferences.  By  the  common  law  canons  of  de- 
scent, males  were  preferred  before  females,  the  eldest  male 
taking  in  ])reference  to  others  of  equal  degree,  and  females 
equally,  while  in  collateral  inheritances  the  male  storks 
were  always  preferred  to  the  female,  except  where,  in  fact. 
the  lands  had  descended  from  a  female.  This  has  all  been 
abolished  Ijy  the  statutes  of  descent  which  provide  in  all 
cases  for  equal  ]iarticipation  among  the  members  of  a  class, 
and  the  right  of  j^rimogenilure,  if  it  ever  existeil  in  this 
country,  is  now  unknown. 

§  y.     Who  May  Take  hy  Descent— Aliens.     There  is  a 

'Dodge  V.  Bcclcr,   12  Kan.   .IQl;  aiiplicalion  of  tlial  rule,  dcscinl- 

Crunip  V.  Fancctt.  70  N.  C.  H4.'j.  ant.sof  a  imt-soikIccI'iusimI  iit  iiijini- 

'(V)x  V.  Cox,  44  Ind.  'ii\H;  Eslilr-  /»m  ifprcscnlcd  their  ancestor,  an. 1 

nian'H  Apix-al,  74  Pa.  St.  42.    Com-  only      wla-n      tlu-     n-inrsi-nlation 

pan;  Ilarri.s'  Ehtat4',  74  Pa.  St.  m.  failed,  were  tlie  lin<-al  deMceniliiiits 

'  Til  in  iH  somewhat  in  at-fonlunre  of  the  inl«'slate  ne.\l   of    Km  p<i- 

witli  tlie  fourth    ranon  of  iidierit-  milled  to  come  in. 
unce  at  common  law,  only  by  the 
87 


578  AnSTRACTS    OF    TITLE. 

mass  of  curious  and  obsolete  learning  in  the  books,  relative 
to  persons  capable  of  succeeding  to  an  inheritance,  for  the 
law  formerly  guarded  the  landed  estates  of  the  country 
"with  jealous  care,  and  ruthlessly  excluded  from  a  succession 
thereto  all  persons  Avho  owed  fealty  to  another  sovei-eign. 
Inheritance  was  long  confined  to  citizens  of  the  United 
States,  and  aliens  were  expressly  declared  incapable  of  taking 
lands  b}''  descent,  or  other  mere  oi)ei'ation  of  law,  and  l)ecause 
an  alien  could  have  no  inh.oritable  blood  through  wliich  title 
could  be  deduced,  a  citizen  was  precluded  from  assorting  a 
title  so  derived.  In  case  of  the  death  of  an  alien  owning 
lands,  or  of  a  citizen  without  other  than  alien  lieirs,  the 
lands  of  such  persons  escheated  to  the  State.'  Private  laws 
Avere  often  passed  .to  enable  individuals  to  receive  and  trans- 
mit title,  and  the  effect  of  such  laws  was  to  invest  the  ])er- 
son  mentioned  with  inheritable  blood  and  to  enal)le  him  to 
alien  or  devise  his  property  and  to  transmit  by  descent  in 
all  respects  the  same  as  a  citizen  of  native  birth,'  but  not  to 
remove  the  barrier  against  alien  heirs.  But  all  this  is  of 
the  past.  In  States  where  the  doctrine  formerly  prevailed 
it  has  been  sAvept  away  by  the  liberal  policy  of  later  years 
and  in  the  newer  States  it  never  had  a  recognition,  and  for 
all  practical  purposes,  so  far  as  respects  the  acquisition  and 
'lescent  of  land,  the  alien  and  the  citizen  stand  upon  an 
ccjual  footing.'  In  case  of  descents  in  titles  of  long  stand- 
ing, an  inquiry  into  the  questions  just  noted  is  material  and 
necessary,  and  if,  from  a  view  of  the  facts  shown,  or  of  an- 
swers to  inquiries  in  pais,  it  appears  that  title  is  deduced 
tlirough  an  alien,  at  a  time  Avhen  aliens  were  incapable  of 
transmitting  by  descent,  evidence  of  other  matters,  sufficient 
in  UiAv  to  support  tlie  title  of  the  present  claimant,  should 
be  required  before  accepting  same.  The  hiAvs  of  the  States 
removing  the  disabilities  of  alienage  and  granting  or  with- 
holding the  privileges  of  citizenship,  are  not  usually  retro- 

'  Craig  V.  Radford,  8  Wheat.  3G3;  dower  and  curtesy:  Mick  v.  Mick, 

Duo  V.  Govemeur,  11  Wlieat.  35-2;  10  Wend.  379. 
Jackson    r.  Green,  7   W^end.    333;  'Parish  r.  Ward,  28  Barb.  828. 

Lovj' r.  Levy,  6  Pet.  102.    This  ex-  ="800  McConville  r.    Ilowell,    17 

tended  as   well  to  the  estates  of  Fed.  Rep.  104. 


DESCENTS.  579 

active,  nor  do  tliey  possess  any  extra-territorial  effect,  and 
the  domicile  of  the  ancestor  at  the  time  of  his  death  does 
not  affect  the  application  of  the  lex  rel  sitce,  for  no  State 
can  prescribe  qualifications  of  citizenship,  to  be  exercised 
in  another  State,  in  opposition  to  its  local  laws  and  policy, 
and  even  the  clause  of  the  federal  constitution  declarinjr 
that  the  citizens  of  each  State  are  entitled  to  all  the  privileges 
and  immunities  of  citizens  in  the  several  States,  is  not  suffi- 
cient to  overcome  the  rule." 

§  10.  Coutiiiued — Adoptive  Heirs.  Tlie  rights  growing 
out  of  adoption  present  a  series  of  somewhat  similar  views. 
This  act,  being  in  derogation  of  the  common  law  and  of 
natural  right,  confers  upon  the  heir  by  adoption  rights 
which  can  onl}-  be  asserted  strictly  witliin  the  law,  and  par- 
ticularly is  this  the  case  when  title  is  claimed  in  States  other 
than  that  under  whose  laws  the  heirship  was  effected.  The 
rights  of  inheritance  acfjuired  l)y  an  adopted  heir  in  one  State 
can  only  be  recognized  and  upheld  in  another  State  so  far 
as  they  are  not  inconsistent  with  the  law  of  descent  of  such 
latter  State,  and  his  inheritable  capacity  must  be  measured 
by  the  laws  of  the  State  where  the  land  is  situate,  and  not 
by  that  of  his  late  ancestor's  domicile,  or  the  State  conferring 
inheritable  blood.* 

§11.  Ancestral  Estates — Half  Blood.  A  marked  promi- 
nence may  be  observed  in  the  statutes  of  descent  of  all  tlie 
States  in  relation  to  ancestral  estates  and  the  exclusion  of  all 
persons  who  do  not  partake  of  the  blood  of  such  ancestor. 
The  clause  in  tjuestion  provides  in  substance  that  in  case  an 
inheritance  comes  to  an  intestate  by  descent,  devise  or  gift  of 
one  of  his  ancestors,  all  those  not  of  the  blood  of  sut-h  an- 
cestor shall  be  excluded  from  such  inheritance,  and  the  ni\v 
ob.served  by  the  courts  is  general,  that  oidy  persons  of  an- 
cestral blood  can  inherit  ancestral  estates.'  The  current  of 
later  decisions,  however,  is  uniHjrm  in  declaring  that  the 

'GcTard'B  Titk«,  89;  Corfu'Ll  v.  213;  S^wal  v.    KmIhiIh,    ll.')   Mjik.k. 

CorK'll.  4  W.Lsh.  (C.  n.);;7l:  Kce-  2«'J;  KtH'K'nn  v.  tierajjlity.  loi    III. 

gjin  V.  (JeraKlity,  U'l  III.  20.  20. 

»  Cotuult  Hum  V.  KoHH,  129  M.ms.  •  Caiiiplu  II  v.  "Wan-,  27  .\i  k.  05; 


5S0  Al^.STKACTS    OF    TITLE. 

rule  has  reference  to  tlie  immediate  ancestor  from  whom  tlie 
intestate  I'eceived  the  inheritance,  and  not  from  a  remote 
ancestor  who  was  the  original  source  of  title.' 

§  12.  Surviviiis;  Consorts.  Ilushands  and  Avives  are  in 
no  sense  of  the  word  next  of  kin  to  the  other/  hut  inasniucli 
as  heirship  is  peculiarly  a  creation  of  tlie  legislature,  it  has 
the  power  to  make  a  surviving  husband  or  wife,  as  well  as  a 
child,  an  heir,  and  this  has  been  directly  or  indirectly 
accomplished  in  a  number  of  the  States.'  But  further,  tlie 
right  of  dower  has  been  radically  changed  in  a  few  States, 
so  that  instead  of  the  use,  during  life,  of  a  portion  of  the 
husband's  estate,  the  fee  to  a  specific  quantity  vests  abso- 
lutely in  the  widow  upon  his  death,  and  though  it  will 
require  no  small  amount  of  astute  reasoning  to  discover 
wherein  such  procedure  does  not  constitute  a  descent,  yet 
the  courts  of  such  States,  in  view  of  the  fact  that  the  statute 
declares  that  she  shall  be  "  entitled,"  etc.,  have  decided  that 
the  widow  does  not  take  by  descent,  as  an  heir,  but  by  vir- 
tue of  her  marriage  relation,  as  a  widow.' 

§  13.  Coparceners.  Persons  to  whom  an  estate  of 
inheritance  descends  jointly,  and  by  whom  it  is  held  as  an 
entire  estate,  are  called  coparceners.'  Formerly  in  England 
the  term  included  all  persons,  and  such  is  its  legal  significa- 
tion in  America,  but  its  present  use  in  England  is  confined 
to  females."  The  distinction  between  coparcenary  and  ten- 
ancy in  common,  is  virtually  abolished  in  the  United  States, 

Wheeler  v.  Clutterbuck,  52  N.  Y.  v.   Lynch,   43  Barb.    (N.   Y.)   147; 

67;  Perkins  v.  Sinimonds,  28  Wis.  Ilaraden   v.   Larrabee,    113    IMass. 

90.  430;  Dodge's  appeal,  106  Pa.  St.  216. 

1  Buckingham  u.  Jacques,  37  Con.  ^  May  v.  Fletcher,  40  Ind.  577; 
402;  Curren  v.  Taylor,  19  Ohio,  36;  Dodge  v.  Beeler,  12  Kan.  524;  Ring- 
Cramer's    Appeal,   43    Wis.     167;  house  v.  Keever,  49  111.  470. 
Ryan  v.    Andrews,   21   Mich.  229;  ■»  Brannon  v.   May,   42  Ind.  92; 
Wheeler  v.  Clutterbuck,  52  N.  Y.  May  v.  Fletcher,  40  Ind.  577. 
G7.  ^  1  Bou.  Law  Diet.  363;  2  Black. 

5  Townscnd  v.   RadclifTe,  44  111.  Com.  187. 

446;   Tillman  v.  Davis,  95  N.  Y.  17.  »  4  Kent  Com.  462;  2  Bou.  Inst.  n. 

Tlie  term  "  next  of  kin'"  refers  only  1781. 
to  relatives  by  blood.     See  Slosson 


DESCENTS.  5S1 

and  the  general  rules  relative  to  tenants  in  common  have 
the  same  application  whether  the  coiiimou  propert}'  be 
derived  by  descent  or  by  purchase. 

§  1-i.  AVliat  Descends.  Everything  comprised  in  the 
term  **  lands,"  or  "  lands,  tenements  and  hereditaments," 
descends  according  to  law  to  the  heirs,  and  these  terms 
include  every  estate,  interest  and  right,  legal  and  equitable, 
whether  in  possession  or  expectancy,  vested  or  contingent, 
except  such  matters  as  may  be  determined  or  extinguished 
by  the  death  of  the  intestate,  leases  for  years,  and  estates 
for  the  life  of  another.' 

§  15.  How  Alfected  by  Ancestral  Covenants.  Heirs  are 
not  bound  by  the  covenant  of  their  ancestors,  further  than 
the  real  estate  descended  to  them,  and  the  amount  of  their 
distributable  shares  of  their  ancestor's  personal  estate,'  but 
where  the  ancestor  conveyed  with  warranty,  land  to  wliich 
he  had  no  title,  or  in  which  he  had  only  an  inferior  or  lim- 
ited estate,  his  heirs  must  make  the  warranty  good,  if  they 
have  assets  by  descent  equal  to  the  vahie  of  the  land.' 

§  IC.  Liability  for  Ancestral  Debts.  An  heir  is  under 
no  legal  liability  to  discharge  the  debts  of  his  ancestor 
from  whom  he  takes  real  estate,  except  where  the  personal 
estate  of  such  ancestor  is  insufficient  to  pay  same,*  and 
creditors,  in  the  tirst  instance,  must  resort  to  the  personal 
representatives,  before  seeking  satisfaction  of  tlie  heii*s.* 
After  having  acccjUed  the  succession,  they  become  iK-rsun- 

'  Tlie  statute  u-sually  dofinos  the  accurato  to  say  that  lands  descciul- 

subject    of    inhoritance,    hut    the  in^;  to  ht'irs  are  charged  witli  tlio 

aU»ve  is  the  sulistanco  of  tlie  stat-  dchts  of  the  aiici-stor.     Tlie  lands 

ute    as    generally    enacted.     And  are  lialile  only  to  be  chargetl  with 

see  Gerard'ii  Titles,  'M<i.  tlie  payment  of  debts  uixjn  a  d»  li- 

*  Holder  r.  Mount,  2  Marsh.  (Ky.)  ciency  of  personjil  itssets;  and  tiiia 

l>i9.  riglit  may  be  lost  by  delay:  liihhop 

'  Miller  t\  liledscH-.  01  Mo.  11(5.  v.  OCnnner.  W  III.  rM. 

«  .McL.-an  v.  .M(H.'an,  71  III.   i:U;  '  Mix  i'.  French,  lUlIeiak.  (Tenn.) 

Woodtin  V.  Andi-rsiin,  2  Teini.  ("h.  377. 
'i'6l.      Though  cubtuaiury,  it  in  not 


5S2  ADSTKACTS    OF    TITLE. 

ally  luiblc  for  the  debts  of  the  ancestor,'  but  only  to  the 
extent  of  what  descends  to  them  fi'<.)ni  such  ancestor.' 

§  17.  Creditors'  Liens.  Even  though  the  title  may  be 
perfect  in  the  person  asserting  same,  it  is  yet  liable  to  be 
defeated  b}'  sale  made  in  satisfaction  of  the  ancestor's  debts, 
and  no  security  can  be  predicated  for  it  until  the  bar  of  the 
statute  has  intervened.  In  case  of  unprobated  estates  the 
full  period  of  limitation  must  have  exi)ired  before  a  pur- 
chaser can  feel  reasonably  certain  as  to  the  stability  of  liis 
title,  and  where  there  is  no  statute — as  is  generally  the  case — 
interposing  any  limitation  of  time  within  M'hich  the  lien  of 
creditors  on  the  lands  of  a  decedent  must  be  enforced,  diffi- 
cult and  embarrassing  questions  are  presented,  for  which 
no  absolute  rule  of  solution  can  be  given.  The  questions 
that  naturally  arise  are,  wall  the  delay  and  laches  of  the 
creditor  destroy  his  lien  and  right  to  pursue  the  land  in  the 
hands  of  the  grantee  of  the  heir,  holding  under  a  conve}'- 
ance  duly  recorded,  and  if  so,  wdiat  period  of  time  ?  Cer- 
tainly the  lien  can  not  be  perpetual,  and  it  would  seem,  by 
analogy  to  the  liens  of  judgments  and  the  limitation  for 
entry  upon  land,  that  the  statutory  period  provided  in  those 
cases  should  bar  such  lien,  and  this  has  been  the  view  taken 
by  the  courts  when  such  questions  have  been  presented.' 

In  case  of  probated  estates,  a  shorter  period  is  required. 
The  limit  to  the  time  when  application  can  be  made  by 
creditors  to  sell  the  lands  of  the  decedent,  is  variously  llxt-d 
at  from  two  to  three  years  from  the  granting  of  letters  of 

>  Succession  of  Bougere,  28  La.  91;  Cutriglitv.  Stanford,  81  lU.  2-iO  . 

Ann.  743.     The  debts  chargeable  ^  McCoy  v.  Morrow,  18  III.  519; 

upon  lands  descended   are    those  Fitzgerald  v.   Glancy,  49  111.  46.j. 

contracted  by  the  decedent  owner,  Tlie  policy  of  the  law  is,  repose 

not  those  incurred  by  his  repre-  and  security  of  titles  and  estates 

sentatives  in  the  course  of  admin-  against  dormant  claims,  and  fur- 

istration  :    Allen  v.  Poole,  54  Miss.  ther,    to    afford    notice    of    liens 

823;  Porterfield  u.  Taliaferro,  9  Lea  against  lands  through  the  pubhc 

(  Tenn.),  242.  records,  and  to  disfavor  those  lions 

*  Parson  v.  Hadduck,  8  Biss.  (C.  of  which  it  has  provided  no  public 

Ct.)  293;  Williams  v.  Ewing,    31  notice. 
Ark.  229;  Branger  v.  Lucy,  82  111, 


DESCENTS.  5S3 

aclministration.  During  tliis  period  the  land  remains  sub- 
ject to  sale,  in  case  of  a  deliciency  of  personal  assets,  nut 
only  in  the  hands  of  the  heirs,  but  of  every  subsequent  pur- 
chaser,' and  the  title  made  at  such  sale  will  be  ]\aramount 
to  all  titles  made  by  or  through  the  heirs,"  There  is  no 
prohibition  to  the  alienation  of  the  land  before  the  ex})ira- 
tion  of  the  prescribed  period,  for  the  heir  may  sell  and  con- 
vey at  any  time  after  the  death  of  the  ancestor,  but  if  he 
should- convey  before  the  expiration  of  that  period,  the 
lands  pass  subject  to  the  power  of  the  probate  court  to 
order  a  sale  for  the  payment  of  debts,  which  is  a  kind  of 
statutory  lien  running  with  the  land.  After  the  exjiiration 
of  the  statutory  period,  the  power  of  the  probate  court 
ceases;  the  land  is  discharged  from  the  lien;  and  the  heir 
may  sell,  and  hona  fiAe  purchasers  will  take  the  estate, 
freed  and  discharged  from  the  debts.' 

§  IS.  E(iuitable  Conversion.  The  succession  of  the 
heir  may  also  be  defeated  by  wliat  is  known  as  equitable 
conversion,  as  where  the  ancestor  had  made  a  valid  contract 
of  sale  but  had  died  l)efore  its  consummation  by  deed.  In 
such  a  case  equity  will  intervene,  on  the  familiar  princij)les 
heretofore  shown.*  lu  the  event  just  noted,  the  i)urchase 
money  accrues  to  the  executor  or  administrator,  and  not  to 
the  heirs,"  while   on  the  contrary,  if  the  ancestor  had  i>ur- 

'Hj-de  V.   Tanner,   1   Barl).    79;  'Collamore  r.  Wilder,    19   Kan. 

Hill  r.  Treat,  67  Mo.    501;  McCoy  67;  Sevier   v.  Gordon,  29  La.  Aiin_ 

V.  Morrow,  18  111.  519.  440;  Ilydo   r.    Tanner,  1    Barb.  79* 

«  Meyer  V.  McDougal,  47  111.  278.  Thi.s  is  a  matter  of  statutory  reg. 
Tlie  same  is  e<iually  true  of  dev-  ulation;  eonsidt  loeal  stulntes. 
isees:  Hyde  v.  Tanner,  1  Barb.  79.  *  See  Chap.  XVIII,  Agreements 
But  where  the  creditor  proceeds  for  (Vjnveyanci'S. 
directly  again.st  the  ln^ir,    if   the  '  The  heire  in  Kuch  a  case  woidd 
real   e^.lale  luw  been  s<jld   by  such  take  the  le.-.'al  title  by  descent,  but 
lieir  in   gfxj<l  faith,  it  would  seem  only  jw  tru.sU.'e8:     JoIuimhi  t'.  (\>r- 
that  it  can   not   be*  sold   under    a  bett,  11    I'aige,  265;  MtK)re  r.  Bur- 
judgment    against   him;    but    the  rows,  HI  Barb.  17:i;  Smith  r.  Siniili, 
cn-ilitor  must  witiHfy  lii.s  judgment  55  III.  2Ul;  Kaloii  r.  Biyan,  Jn  111. 
out  of  otln-r  prop4rty  of  the  htir  to  525. 
the  extent  of  tin;  value  of  tin-  land 
soulienol:   V;iiisyrklf    v.  Ilii  jiaid- 
son,  13  111.  171. 


531  ABSTRACTS    OF    TITLE. 

cliasotl  land  but  received  no  conveyance,  the  title  snbsc- 
(|iiently  ac(juired  would  inure  to  the  heirs,  even  though  the 
administrator  paid  the  purchase  money. 

§  rj.  Proof  of  Heirship.  Title  by  inheritance  or  suc- 
cession accrues  only  to  the  issue  of  lawful  wecUuck,'  and 
can  bo  asserted  only  by  the  person  or  ]>ersons  who  can 
bi-in^'  themselves  within  the  line  of  succession  ])rovided  by 
the  statute.  To  successfully  assert  the  title,  therefore,  it  is 
necessary  for  the  heir  to  prove :  (1)  the  death  of  the  ances- 
tor, and  lawful  seizin  in  him  of  the  subject-nuitter  of  the 
title  at  the  time  of  such  decease;  (2)  the  marriage  of  his 
parents;  and  (3)  proof  of  his  legitimacy  or  a  lawful  adop- 
tion. These  three  points  satisfactorily  established,  the  law 
will  invest  him  with  title  to  such  portion  of  the  ancestor's 
estates  as,  under  the  statute,  he  is  entitled  to  take.  To 
prove  heirship  in  a  collateral  line,  a  party  must  show  the 
descent  of  himself  and  the  person  last  seized,  from  some 
common  ancestor,  and  the  extinction  of  all  those  lines  of 
descent  which  would  claim  before  him." 

In  contests  concerning  the  succession,  these  matters  are 
proved  in  a  variety  of  ways,  but  mainly  upon  the  established 
precedents  of  the  common  law,  which  will  be  discussed  in 
succeeding  paragraphs.  The  difficulties  which  may  attend 
the  judicial  determination  of  questions  of  heirship,  including 
the  ascertaining  who  are  entitled  to  succeed  to  an  intestate's 
real  estate,  do  not  seem  to  be  ju-ovided  for  by  statute  in  a 
majority  of  the  States,  though  an  attempt  has  been  made  in 
some  to  provide  means,  by  a  proceeding  in  probate,  for  ob- 
tainino-  presumptive  evidence  of  the  facts,  as  to  the  persons 
-who  constitute  the  heirs  at  law^  of  a  deceased  person.'     Or- 

'  It  is  a  rule  of  constmction  that,  mon  law  rule,  which  prevents  ille- 

pj-ima /acie,  the  term  "  children  "  gitimate  children  from  inheriting 

means  lawful  children,   an'd    the  anything:      Blacklaws    v.    Milne, 

statute  of  descents,  by  which  the  82  111.  505. 

property  of  an  intestate  is  made  to  '  Emmerson  v.  White,  29  N.  H. 

descend  to  and  among  the  children  482. 

and  their  descendants,  has  refer-  «  N.  Y.  Civ.   Co.     Proc.   §  2654. 

ence  to  lawful  children  only,  and  Tliis  Is  done  by  petition  describing 

dojs  not  do  away  with  the  com-  the  real  estate;    setting  forth  the 


DESCENTS.  5S5 

(linarily  the  meager  proof  otTeivd  bv  tlie  administrator,  upon 
the  application  for  letters  of  administration,  is  the  only  rec- 
ord proof  of  heirship  availalde  in  the  compilation  of  an 
abstract,  and  though  the  decree  or  adjudication  may  timl  the 
persons  mentioned  in  his  petition  the  only  heirs  at  law  of 
the  decedent,  it  is  not  conclusive  on  that  point,  and  is  done 
rather  for  the  pui-pose  of  fixing  the  right  of  the  ])erson 
api)ointed  to  administer,  and  for  his  guidance  in  thedisti-ibu- 
tion  of  the  ]>ersonalty,  than  to  establish  the  claims  of  the 
heirs  to  the  realty  through  descent. 

AVhere  the  heir  is  such  by  adoption  and  not  by  blood,  it 
may  be  well  in  proper  cases  to  recjuire  further  proof  of  heir- 
ship than  is  aflforded  by  the  finiling  of  the  ])robate  court. 
This  would  be  accomplished  by  showing  the  decree  of  adop- 
tion. The  right  of  ado])tion  is  not  of  common  law  origin 
but  was  borrowed  from  the  civil  law  and  in  every  instance 
is  purely  statutory.  It  is  necessary,  therefore,  that  the  facts 
essential  to  the  exercise  of  this  special  jurisdiction  should  be 
shown  by  the  record,  and  to  give  a  decree  of  adoption  any 
force  or  effect  the  court  jironouncing  same  must,  as  a  rule, 
have  ac(]uired  jurisdiction  (1)  over  the  ])ersons  seeking  to 
adopt  the  child;  (2)  over  the  child;  and  (3)  over  the  parents 
of  such  ciiild.'  In  other  words,  the  statute  must  in  all  cases  be 
complied  with;'  its  terms  and  conditions  must  be  fullilled  ; 
and  if  the  specified  requisites'  are  not  i)erform('d,  then  the 
act  is  incomplete  and  the  child  can  not  iidu-rit  from  tiu'|»ar- 
ent  by  adoj»ti<jn.*  Wiiere  the  statute  ])rovides  spccilically 
the  means  whereby  one  sustaining  no  M<h.(1  i-t-hitiun  to  ;in 
intestate  nuiy  iniiei'it  his  proj)erty,  the  rights  of  iidirritaiice 

facts  upon  wliiili  tlir  jmisdictinn  "Usually  tlio  cousint  nf  tlu' pai 

of  the  court  iJcpi'tids;  the  inti-rcst  cntsorsurvivint;  parent  of  (lifchild 

of  the  pctitioruTH  aiuJ  otlicr  heirs;  is  n><piir('<l,  an<i  if  thi-i  liild   is  over 

aii<l  prayiiitj  for  Ji  (h'lii'o  cstaldish-  the  a^jc  of  consent,  its  own  consent 

in;<  the  rights  of   inheritance;  hut  jis  well.    Wljere  these  nijuisiteH  are 

this  proeeedinj^  does  not  affet-t  the  Hpecified  they  nr«'  vital, 
ri^ht  or  interest  of  a  person  not  a  *  l.uppie  v.  Winatin.  'M  N.  .1.  K(|. 

party  tliereto.  *''»:  l"o^t.  i  c  Wm.  rman,  l.'l  .Ma>vs. 

'  Furgewm  w.  Jonc-s.  nOrefj.  201.  VJd. 

»  Tyl«  I!.  It«-yn«ddH.  M  Iowa.  1 16; 
Kii-gun  r.  (Jeraghty,  101  J 11.  :>0. 


5S6 


ABSTRACTS    OF    TITLE. 


must  be  acquired  in  that  manner,  and  can  be  acquired  in  no 
other  way.' 

§  20.  Proof  of  Deatli.  To  establish  tlic  claim  of  the  heir 
it  is  necessary  to  ])rove  the  death  of  the  ancestor,  and,  in  the 
absence  of  proof,  all  the  presumptions  are  that  an  individual 
is  still  livinfj."  For  certain  purposes  an  absence  of  seven  years 
without  tidings  lias  been  held  to  create  a  presumption  of 
death,'  but  this  presumption  is  repelled  by  very  slight  facts 
and  circumstances*  and  courts  have  refused  to  entertain  the 
presumption  after  an  interval  of  absence  and  silence  of  twenty 
years,  where  the  circumstances  rendered  it  im})robable  that  a 
partv,  if  alive,  would  have  communicated  with  her  friends." 
"Scarcely  any  length  of  time,"  observes  a  Canadian  Avriter," 


'  Sheerer  v.  Weaver,  5G  Iowa, 
578. 

*  Martinez r.  Vives Succession,  32 
La.  Ann.  30o;  Mosheimer  v.  Ussle- 
man,  m  III.  2;W;  Whiting u.  Nicoll, 
4G  111.  230.  Great  lapse  of  time 
will,  of  course,  rebut  the  presump- 
tion, and  in  the  interval  of,  say  one 
Imndred  years,  a  party  must  be 
presumed  to  have  died  in  the  ordi- 
nary course  of  nature.  The  civil 
law,  however,  pi-esumes  a  person 
living  at  one  hunih-ed  yeareof  age, 
and  the  common  law  does  not  stop 
nuich  short  of  this.  See  Watson 
V.  Tindal,  24  Ga.  494. 

3  Whiting  r.  Nicoll,  46  111.  230; 
Dart,  on  Vend.  315;  Hubback  on 
Sue.  (Eng.)  170:  Newman  v.  Jen- 
kins, 10  Pick.  155;  Wambough  v. 
Schenk,  1  Pa.  229:  Davie  r.  Briggs, 
97  U.  S.  628;  Adams  v.  Jones,  39 
Ga.  479. 

-•  Smith  V.  Smith,  49  Ala.  158; 
Bnnvn  v.  Jewett,  18  N.  H.  230. 
A  failure  to  hear  from  an  absent 
person  for  seven  years,  who  was 
known  to  have  had  a  fixed  place  of 
residence  abroad,  would  not  be  suf- 
ficient to  raise  a  presumption  of  his 


death,  unless  due  inquiry  had  Ijcen 
made  at  such  place  without  getting 
tidings  from  him.  Wentworth  v. 
Wentworth,  71  Me.  72. 

*  Taylor  on  Titles,  65;  Bowden  v. 
Henderson,  2  Sm.  &G.  (Eng.)  560. 
On  the  other  hand  one  may  be  pre- 
sumed to  be  dead  before  the  expira- 
tion of  the  lapse  of  time  requisite 
to  establish  the  presumj^tion  in  the 
case  of  absence  without  l)eing  heard 
from,  if  there  is  sufficient  evidence, 
though  circumstantial  only,  to 
fairly  induce  a  belief  in  the  fact 
that  death  has  occuiTcd:  Boyd  v. 
Ins.  Co.,  34  La.  Ann.  848.  The  pre- 
sumption varies  somewhat  accord- 
ing to  the  subject  to  which  it  is  ap- 
plied; this  id  strikingly  illustrated 
in  the  case  of  second  marriages, 
wliere  more  liberal  intendments  are 
permitted,  than  in  case  of  succes- 
sion and  descent.  See,  Cooper  v. 
Cooper,  86  Ind.  75;  Williams  Es- 
tate, 13  Phil.  (Pa.)  325. 

«  Taylor  on  Titles,  65;  citing  Lee 
on  Abstracts,  467.  And  see,  O'Gara 
V.  Eiscnlohr,  38  N.  Y.  296;  Watson 
V.  Tindal,  24  Ga.  274;  Sprig  r.  Moale, 
28  Md.  497. 


DESCENTS.  5S7 

"  ^vill  be  sufficient  to  compel  an  iinAvillini]:  purchaser  to  take 
a  title  depending  on  such  a  presumption  of  death,  unless  made 
Avith  reference  to  the  age  of  the  party  said  to  be  deceased; 
and  if  the  party  whose  death  is  asserted  was,  when  last  heard 
of,  ver}'"  young,  the  periotl  must  be  that  beyond  which  human 
life  does  not  commonly  extend."  Instances  similar  to  that 
cited  by  the  writer  just  quoted  must,  however,  be  of  very 
rare  occurrence  in  the  United  States  as  other  agencies,  aris- 
ing from  taxation,  statute  of  limitations,  etc.,  might,  under 
proper  circumstances,  validate  and  make  good  a  title  derived 
by  succession  even  though  defective  in  itself  and  founded 
upon  insufficient  evidence  of  ancestral  death.  The  ordinary 
evidence  of  death  in  England  consists  of  entries  in  parochial 
registers,  or  certified  copies  of  same,  and  declarations  as  to 
the  identity  of  the  parties ;  these  registers,  however,  do  not 
seem  to  be  evidence  of  the  time  of  death,  and  disclose  the 
fact  only  inferentially,  as  by  showing  that  it  must  have 
occurred  before  the  date  of  burial,  of  which  fact  they  seem 
to  be  evidence.'  Such  evidence  has,  however,  been  received 
in  the  United  States,'  particularly  in  proving  pedigrees,  but 
is  of  doubtful  character,  unless  aided  by  statute.  To  remedy 
the  defects,  inaccuracies,  omissions,  etc.,  of  parish  registers, 
as  well  as  to  ])r«)vide  some  tangiljle  evidence  of  l)ii'tlis,  mar- 
riages and  deaths,  for  the  large  class  who  woidd  not  be 
affected  by  such  registers  in  a  country  where  a  comj)letc  dis- 
assotiation  of  cliurch  and  State  is  observed,  many  of  thf 
States  have  ])rovided  a  special  registration  of  such  futs  in 
the  permanent  archives  of  the  counties. 

Granting  (A  letters  of  administration  is  prhna  facie  evi- 
dence of  the  death  of  the  l)arty  uj)on  whose  estate  they 
are  issued,  but  the  [)resumption  tiius  rai.sod  is  of  the  lowest 

•  Dart  on  V.  &  P.  *17r>.  of  burial  in  a  churcli  in  IMiiladol- 

*  Hyain  v.  Eilwanls.  1  lJall.(U.  S.)  pliia  wcro  Ik-M  to  Im-  a<iiiiiKsil>l<*  in 
2;  l)u[>I<-Rsi.4  V.  Kf-nncily,  0  I-a.  u  laml  coiilrDVcrsy  in  Ki-iitUfUv, 
2:J1 ;  Jjw^kHon  r.  Ii<)M«'liarn.  ITiJolinH.  tri<'<i  in  ^,l\v  of  the  courts  «»f  tin* 
(N.  Y.)2-'0,  Tlu!  <iui-:,li<)n  w.w  dt-  Inili-.I  StaL-H.  It  wiw  tlitn-  lifid, 
ci«l<i«l  in  favor  of  Huch  «-ntri<¥<  in  cxprcsHly,  that  thfy  witc  couiim'- 
an  <*arly  caw  in  thfSupri'ini' ( 'niirt  t<'Ut  t4f<tiiuoMy.  LrwiH  r.  Miir- 
of  tlio  Unit.'d  Suites,  whore  entries  bluill,  5  I'et.  (U.  S.)  470. 


5SS  ABSTRACTS    OF   TITLE. 

class ;  is  weak  and  inconclusive,  and  may  bo  ix^butted  by 
slight  evidence.' 

Death,  like  any  other  fact,  may  be  proved  by  circum- 
stantial evidence ;  hence  a  sudden  disappearance,  par- 
ticularly if  coui)led  with  an  unsound  mental  or  physical 
condition,*  or  proof  of  a  wreck  of  a  vessel  in  which  the 
ancestor  was  known  to  have  taken  passage,  or  any  other 
circumstances  from  which  the  death  of  the  person  may  be 
reasonably  inferred,  are  all  competent  to  show  the  fact  in 
connection  with  long  and  unexplained  absence.  Where 
several  lives  are  lost  in  the  same  disaster,  there  is  no  pre- 
sumption from  age  or  sex  that  either  survived  the  otherj 
nor  is  it  presumed  that  all  died  at  the  same  moment;  but 
the  fact  of  survivorship,  like  every  other  fact,  must  be 
proved  by  the  party  asserting  it.'  In  the  absence  of  evi- 
dence from  which  tlie  contrary  may  be  inferretl,  all  may  be 
consiilo'ed  to  have  perished  at  the  same  moment;  not  because 
that  fact  is  presumed,  but  because  from  a  failure  of  those 
asserting  it  to  prove  to  the  contrary,  property  rights  must 
necessarily  be  settled  on  that  theory. 

§  21.  Continued — Official  Registration.  In  States 
where  a  system  of  official  registration  prevails,  all  persons 
or  societies  solemnizing  marriages;  all  physicians,  or  other 
professional  persons,  under  whose  care  a  birth  shall  occur, 
or  in  case  of  no  professional  attendance,  then  the  mother; 
and  all  persons  who  shall  be  in  attendance  professionally  at 
the  time  of  the  death  of  any  person,  are  required  to  trans- 
mit to  the  recording  officer  of  the  county  a  statement  under 
their  hands  of  the  facts  attending  such  marriage,  birth  or 
death,  and  a  register  of  the  facts  so  returned  is  kept  by  such 
officer,  A  transcript  of  such  registry  is  further  required  to 
be  transmitted  semi-annually  to  the  Secretary  of  State  to  be 
by  him  preserved  at  the  seat  of  government.*     This  record, 

'  Tis'lalo  i\  Ins.  Co.  26  Iowa,  170.  *  This  matter  is  local  and  statu- 

'  John    Hancock,    etc.,     Co.    v.  torj'.     The  statement  above  made 

Moore,  34  Mich.  41.  is  compiled  from  the  code  of  the 

'  Newell  V.  Nichols.  75  N.  Y.  78;  State  of  Wisconsin.     As  affecting 

Coye  V.  Leach,  8  Met.  (Mass.)  371.  real  estate  by  descent,  it  is  a  most 


DESCENTS.  5  SO 

when  maJe  and  kept  pursuant  to  la\v,  is  received  as  presump- 
tive evidence  of  the  marriage,  birth  or  death  so  recorded.' 
When  no  probate  proceedings  have  been  had,  this  method 
of  proof,  if  avaihible,  shouUl  be  resorted  to,  to  show  the 
death  of  the  ancestor,  as  Avell  as  tlie  birth  and  legitimacy 
of  the  heir  claimant.  The  facts  may  be  stated  in  this 
manner : 

Proof  of  Death        '\       Certiiicate    hj    TT//?.    J/.    Farr, 

of  \n:.d: 

George    Williams.        X      Dated  March  10,  1SS3. 
Due.  200.110.  J       necorded  March  11.  1SS3 

Death  Re(jister  ''A^' page  20.Ss\ 

Certifies  that  George  Williams^  lohite^  male,  aged  fiftyfire 
years,  hj  occupation  a  carpenter^  died  Jfar.  S,  ISSJ,  at  the 
town  of  Phasant  Prairie.  Kenosha  County,  Wisconsin,  of 
Brighfs  disease  of  the  Yidncys,  and  was  huried  in  the  "C^tv- 
7nan  Roman  Catholic  Cemetery.'''' 

That  said  deceased  v:as  lorn  2far.  8,  1S.2S. 

That  the  name  of  the  father  of  said  deceased  was  Henry 
Williams,  and  of  his  mother  Jane  {Plynn)  Willia?ns,  and 
that  the  name  of  said  deceased'' s  wife  is  Mary  (Jones)  Will- 
iams.* 

§22.  Continiierl  Probate  of  Death.  Before  adminis- 
tration is  granted  upon  tiie  estate  of  any  ]>ei'son  aUoged  to 
have  died  intestate,  satisfactory  proof  is  always  recjuired  to 
be  made  before  the  probate  court  to  whom  a])plicati(>n  for 
that  purpose  is  made,  that  the  person  in  whoso  estate  letters 
of  administration  are  re(|uest('d,  is  dead,  and  died  intestate. 
Tliis  is  accomi)lished  ordinarily  l)y  an  allidavit  «>r  verified 
petition,  made  by  the  person  applying  for  such  letters,  or  by 
some  other  credil)le  person,  and  forms  the  basis  of  all  subse- 
fpieiit  proce 'dings  in  such  court. 

wisoaml  salutary  me:i«ure  ami  one;  StaU>  r\  PDtt^T.  M  Vt.  33;  Nilos  r. 

that  h1i(»u1iI   liu'l   iinim-fliatc  atlop-  Spra^cuc,  13  I<»\va,  UH. 
tion  in  all  StaU-s  in  \viii<'ii  it  iln«-a  »  This  si-rviw  U)  idi-ntify  tlio  (1»»- 

ru>t  now  |»r<-vail.  rcasc<l  with  rciuutiialili'  (•••rlaiiity, 

'  Stat<!  V.  Wallaff,  9  N.    H.   T)!.';  aii<i  |.r«'<lu(lfs  Ihi-  tuHtwity  of  atll- 

Milford  V.    \\\iri:t.-Hifr,  7  M;ws.  4H;  davitii  or  iKt-laralioiw  of  iih-ntity. 


590 


ABSTRACTS    OF    TITLE. 


§  23.  Proof  of  Kirth  and  LojJtitimacy.  Cortifioates  of 
the  marriag-o  of  the  i)areiits  and  the  baptism  of  the  person 
proposed  within  a  reasonable  time  after  the  marriage,  are 
admitted  in  England,  and  it  would  seem  in  Canada,  as  full 
and  ample  evidence  of  legitimacy,  without  any  proof  of 
the  identity  of  the  parties,'  and  such  evidence  in  a  contest 
regarding  the  succession  would  also  be  received  in  the 
United  States,  while  for  many  purposes,  in  the  absence  of 
better  evidence,  general  reputation,^  proof  of  cohabitation,' 
admissions  and  dechirations,^  would  be  competent.  Entries 
in  a  family  l)il)le  are  also  admissiljle  to  prove  birth  when 
]>rimary  evidence  can  not  be  obtained.'  An  abstract,  as  it 
is  compiled  in  this  country,  does  not  ordinarily  contain  evi- 
dence of  this  character,  and  Avhere  it  is  desirable  to  obtain 
information  relative  to  heirship,  and  no  decree  has  been 
made  in  any  matter  respecting  same,  and  no  system  of  offi- 
cial registration  of  births  and  marriages  exists,  an  inquiry 
in  jMis  must  be  made.  Where  official  returns  are  made  and 
kept  pursuant  to  law,  such  returns,  or  the  record  thereof, 

'  Taylor  on  Titles,  63;  Hubback      place:    Waldron  r.  Tiittle,  4  N.  H. 


on  Sue.  65.  A  certificate  of  bap- 
tism is  no  evidence  of  the  exact 
age  of  a  part}-;  it  is  good  evidence 
of  his  legitimacy,  but  not  of  his 
age  :  Cov.  Con.  Ev.  281.  And  an 
entry  in  a  baptismal  register  is 
competent  to  prove  only  the  fact 
and  date  of  baptism  :  Blackburn 
V.  Crawford's  Lessee,  3  Wall. 
(U.  S.)  175. 

^  Fenton  v.  Reed,  4  Johns.  52; 
Brice's  Estate,  11  Phila.  (Pa.)  98; 
Harland  v.  Eastman,  107  111.  535. 
An  affidavit  by  some  person  who 
was  present  and  witnessed  the 
marriage  would  be  competent 
(Brewer  v.  State,  59  Ala.  101; 
State  V.  Williams,  20  Iowa,  98),  or 
by  the  celebrant  (State  v.  Good- 
rich, 14  W.  Ta.  834),  or  by  some 
member  of  the  familj-  that  a  mar- 
riage was  reputed  to  have  taken 


371 ;  Kcllj-  V.  McGuire,  15  Ark.  555. 
Jackson  v.  Bro%\-ner,  18  Johns. 
(N.  Y.)  37. 

3  Clayton  v.  Wardell,  4  N.  Y. 
230:  State  v.  Armington,  25  Minn. 
29.  Proof  of  both  reputation  and 
cohabitation  are  sufficient  evi- 
dence upon  which  to  presume 
marriage,  but  proof  of  either  alone 
is  not  sufficient:  Commonwealth 
V.  Stump,  53  Pa.  St.  132.  Reputa- 
tion is  generally  held  to  consist  of 
the  expressed  opinions  of  persons 
who  knew  the  parties. 

*  Betsinger  v.  Chapman,  88 N.  Y. 
487;  Proctor  v.  Bigelow,  38  Mich. 
282;  111.  Land  &  Loan  Co.  v.  Bonner, 
75  111.  315. 

*  Campbell  v.  Wilson.  23  Tex. 
252;  Hunt  V.  Chosen  Friends,  64 
Mich.  67. 


DESCENTS.  591 

would  furnish  pri?na  facie  evidence  of  tlie  desired  facts,' 
while  the  probate  of  the  estate,  inclndinii;  distrilmtion, 
assignment  of  dower,  etc.,  would  also  be  evidence  of  the 
same  character. 

§  24.  Validity  of  Descents.  Titles  depending  upon 
descent  are  viewed  by  our  English  brethren  Avith  great  dis- 
favor and  ranked  amongst  the  poorest  that  can  be  oirered. 
or  the  weakest  that  can  be  asserted.  Such  titles  are  always 
to  be  viewed  with  jealousy,  observe  their  leading  writers,  and 
if  dependent  upon  several  successive  descents  are  scarcely 
marketable.'  In  a  limited  sense  this  is  also  true  of  title  by 
descent  in  the  United  States,  and  a  purchaser  Avould  be  justi- 
fied in  refusing  to  take  many  titles  that  might  be  olfiMvd 
from  ]iarties  claiming  by  descent.  This  almost  invariably 
follows  in  cases  of  unprobated  estates,  for  no  title  can  be 
more  uncertain  and  insecure,  and  scarcely  any  length  of  time, 
in  the  absence  of  other  evidence,  would  be  sulticient  to  fur- 
nish a  reasonable  presumption  of  death  and  the  exclusion  of 
the  rights  of  other  heirs  who  might  possess  valid  claims  u]ion 
the  property.'  Proof  that  certain  persons  are  the  only  chil- 
dren who  survive  their  father  does  not  establish  the  fact 
that  they  are  the  only  heirs,  as  he  may  have  grandchildren 
by  deceased  children,*  and  hence  it  is  necessary,  in  some 
instances,  that  additional  information  to  that  furnished  by 
the  proceedings  in  probate,  be  also  procured  to  fully  estal> 
lish  an  asserted  right.  A  properly  taken  proof  of  heirship 
in  probate  should,  however,  show  tlie  fact  of  decease  <jf 
cliildren  prior  to  the  death  of  the  intestate  and  whether  or 
not  such  children  died  without  issue,  but  fn'(|uently  this 
fact  is  not  found.  The  statute  oi  limitations  will  furnish  a 
strong  re-enforcement  to  a  doubtful  title  by  descent,  and 
serve  to  effectually  settle  many  of  the  (piestions  thatoihor- 
wise  would  render  the  title  so  undesirai)le. 

'  State  t'.  P<itt4T,  52  Vt.  ;W;  Nili-H  'A    (Icci-asfd    iitrsoii    i«   .nhviiys 

V.  Spra^f,  lU  I(»WH,  lliH.  ihi-siiiiumI  to  liavc  It-ft  lii'irs:  I'ilf  r. 

»  Atkinwm  on  TitlcH,  :i7l;  IIul)-  McHratii.-y,  ITj  III.  Ml  I. 
baf-k  on  Sue.  (Kiik.)  71;  Taylor  ou  *  SkiiiiicT  v.  Kulloii,  Ul)  III.  4S^1. 

Titli*  (Caniula),  61. 


502  ABSTRACTS    OF    TITLK. 

§  25.  Abstract  of  Doseeiits.  Under  the  English  sj'stcm 
of  abstracting,  a  descent  is  sliown  l)_v  a  pedigree,  supported 
by  ccrtificatos  of  marriage,  births  and  deaths,  inserted  in  the 
order  of  their  date.  If  the  certificates  can  not  be  procured 
(which,  from  the  loss  or  imperfect  state  of  registers,  and  other 
circumstances,  is  sometimes  the  case),  substitution  is  made 
of  entries  in  the  Iloyal  College  of  Arms,  in  family  bibles  or 
books,  on  tomb  and  grave  stones,  and  the  solemn  declarations 
of  family  solicitors,  tenants,  workmen,  and  jiarties  acquainted 
with  circumstances  and  facts,  as  Avell  as  such  evidence  of  the 
seizin  of  the  ditferent  parties,  shown  by  the  pedigree  to  be 
entitled,  as  can  be  adduced;  for  Avhich  evidence  old  leases 
of  the  ])roperty,  land  tax,  and  parochial  assessments,  are 
referred  to.'  Pedigrees  may  be  used  to  a  very  limited  ex- 
tent in  the  eastern  States  and  are  sometimes  alluded  to  l)y 
writers  on  conveyancing,  but  in  the  west  they  are  practically 
unknown  and  seldom  if  ever  resorted  to,  while  authentic 
information  of  the  facts  to  which  a  pedigree  relates  is 
extremely  diiRcult  of  ascertainment,  and  the  sources  as  men- 
tioned above  would  hardly  be  considered  sulficiently  certain 
by  the  average  attorney.' 

Family  records,  when  shown  to  have  been  regularly  com- 
piled, are  not  without  weight  in  the  United  States,  and  are 
frequently  resorted  to  for  proof  of  heirship  in  the  adminis- 
tration of  estates;  but  while  they,  with  other  evidence,  will  be 
received  by  courts  to  prove  ]iedigree  and  establish  rights  of 
succession,  they  do  not  constitute  such  evidence,  save  as  they 
appear  in  court  proceedings  by  Avay  of  recital,  as  is  required 
in  compiling  an  abstract,  and  examiners  as  a  rule  do  not,  and 
as  a  matter  of  fact,  should  not,  attempt  to  introduce  them  or 
any  other  matter  strictly  in pa'ifi.     A  judicial  determination 

'  Moore  on  Abst.  44. 

"As  a  matter  of  curiosity,  rather  than  for  any  real  utility,  the  follow- 
ing abstract  of  an  English  pedigree  is  inserted.  The  object  is  to  sliow 
title  by  descent  in  Thomas  Noakes  : 

Ralph  Noakes  was  the  grandfather  of  Thomas  Noakes,  Esq.,  of  Cliflf 
Hall  (the  mortgagor),  as  will  be  seen  by  the  subjoined  pedigree  {ex  parie, 
jKiterna)  copied  from  one  in  liis  possession,  and  kept  by  his  family.  It 
is  also  shown  by  diflereut  entries  found  in  tlie  family  registers,  now 


DEscEXTs.  50;; 

in  an  action  brouglit  bv  averse  claimants,  or  in  a  proceeding  Jn 
rem  to  determine  the  rights  and  apportion  the  interests  of  the 
jxirties  before  tlie  court,  would  be  proper  record  evidence  of 
descent  and  right  of  succession,  while  the  proceedings,  had  in 
probate,  are  evidence  of  the  same  nature.  These  matters 
therefore,  must  always  be  noted  and  appropriately  exhibited, 
and  with  a  very  few  exceptions  Avill  furnish  sufficient  data, 
and  be  sufficiently  conclusive  of  the  facts  of  death  and  heir- 
ship, to  warrant  the  belief  that  the  persons  so  found  to  be 
the  heirs  of  the  decedent  are  such  heirs  and  the  only  ones 
entitled  to  participate  in  the  distribution  or  share  in  the 
succession. 

§  20.  rontiiiiied — Probate  Proeeoflings.  The  usual 
and  ordinary  method  of  showing  a  descent  in  the  United 
States  is  by  an  abstract  of  the  settlement  of  decedent's  estate. 
This  should  disclose  the  jurisdiction  of  the  court,  apj)oint- 
ment  of  administrator,  proof  of  heirship,  and  adjudication. 
This  is  sufficient  to  show  the  descent,  but  in  order  that  the 
title  of  the  heirs  may  not  be  obscure  by  latent  defects  or  cred- 
itors' liens,  the  inventory,  payment  of  claims,  and  final  report 
and  discharge  of  the  administrator  should  also  be  shown. 

likewise  in  his  possession.    The  fact  of  his  being  the  direct  hneal  hi'ir  of 
said  Ralph  Noakes  is  also  conlirmed  by  entries  at  the  Royal  College  of 
^Vrms. 
And  the  following  is  a  pedigree  and  enti-ies  refeiTed  to : 
Ralph  Noakes=Ann  Freke. 

Richard=Sarah  Hart.  Ann— John  Brown. 

ob.  ob. 


Tliomas— OUva  Jones.  Susan^HJaines  Old.     Jane. 

I  , ■ V    .lb.  a't.  18. 

Thoma.s— Charlotte  Smart.  Samuel,  Eliza,  Thomas. 


Thoma.s,  and  six  other  children. 

"  Feb.  10,  1710]  Rifliard.  only  son  of  Ralph   Noakt-s,  was  Imrn  at  ClilT 
llall,  at  'A  in  the  morning." 

"April  3,  170*2 1  Thomas,  only  son  of  Richard,   born  at  ClilT   Hall  on 
Tuewday  the  3tl  of  .\|>ril,  1703,  at  VI  o'clock  at  night." 

"June  1I»,   l?**!)  Thomas,  firm  of  Thos.  NoakeH  and  Charlotte  Smart, 
lnjrn  at  Cliff  Hall,  at  D  in  the  morning." — Moore  on  .Vbst.  5tf. 
38 


594  ADSTKACTS    OF    TITLE. 

The  degree  of  detail  is  optional  with  the  examiner,  provided 
the  jurisdiction  be  made  to  ap})ear  and  an  ap[)arent  reg- 
ularity be  shown  in  all  of  the  subsequent  steps.  The  fol- 
lowing is  offered  as  a  specimen  of  a  ver}-  simple  settlement: 

In  Prohate  Courts  Cook  County,  Ills. 
In  the  mxittcr  of  the  estate  \       Descent. 

of  y      Case  No.  2.000  in  lox  ]35. 

Julia  A.  2£ason.  )       Petition  of  Anna  IlaskeU  for 

letters  of  administration,  fled 
May  10,  1883.     Record  V^,  pg.  12.    • 

Represents  that  Julia  A.  Mason  died  intestate,  Aug.  2, 
1882,  leaving  property  and  effects  in  CooJc  County,  Ills.,  as 
follows,  to  wit:  [desc7'ibe  the  real  estate']  and  leaving  her 
surviving,^  Anna  Haskell  {wife  of  Charles  Haskell)  and 
Walter  A.  Mason,  her  only  heirs  at  law. 

Sworn  to  May  10,  1883. 

Letters  of  administration  issued  to  Anna  Haskell,  dated 
May  10,  1883. 

Bond  in  sum  of  $6,1)00.00  with  sureties,  filed  and  ap- 
^proved  May  10,  1883. 

Wa)'rant  to  appraisei's  issued,  dated  May  10,  1883. 

Proof  of  heirship  entered  May  10,  1883. 

The  court  finds  from  the  evidence jjrodxiced  in  open  court, 
that  Jidia  A.  Mason  died  Aug.  2,  1882^  leaving  her  surviv- 
ing Walter  A.  Mason,  her  son,  and  Anna  Haskell  {wife  of 
Charles  Haskell)  her  daughter.  Jeer  only  next  of  kin. 

•  This  fact,   if  properly  proved,  "^  Tlie  proof  of  death  is  the  foun- 

\vill  be  sufficient  to   establish  the  dation    of    title,    by    descent    or 

heirship    of     the    persons    named  through    the    administrator;    this 

(Russell  V.  Jackson,  22  Wend.  (N.  must  be  conclusive,  and,  while  the 

Y.)  277),  but  is  not  conclusive,  nor  evidence  need  not  be  shown,  the 

does  it  prove  that  the  persons  named  fact  should  be  made  to  appeal-  as 

are  the  only  heirs  entitled  to  share  strongly  as  possible.     See  Tliomas 

in  the  succession,  as  the  intestate  v.  People,  107  111.  517,  for  a  learned 

may  have  had  children  who  did  not  and  instructive  opinion  on  gi-ants 

survive  him,  but  who  in  turn  may  of  administration,  made    on  pre- 

have  left  children  entitled  to  a  rep-  sumptions  and  insufficient  proof, 
resentation:  Skinner  v.  Fulton,  39 
lU.  484. 


DESCENTS.  505 

Proof  of  2^y^^icatio7)  and  posting  of  notices  for  adjiuJi- 
cation  fled  June  1,  1SS3,  and  aj)j)rovcd  July  16,  1SS3. 
AdJudicatioJi  ordered  Jultj  16,  1SS3. 

§27.  Settlement  without  Administration.  It  is  com- 
petent for  all  the  heire  to  an  estate,  if  of  age,  to  settle  and 
pay  the  debts  of  the  estate,  and  to  make  partition  of  the 
property  anions:  themselves,  "without  any  administration; 
and  neither  creditors  nor  debtors  of  the  estate  have  a  right 
to  complain.'  If,  in  pursuing  this  course,  they  sell  portions 
of  the  property  and  make  proper  application  of  the  pro- 
ceeds to  the  payment  of  the  debts,  their  acts  are  entitled  to 
full  faith  and  credit,  as  though  they  acted  in  the  capacity 
of  administrators  or  executors." 

§  2S.  Esclieat.  The  last  taker,  under  the  statute  of  de- 
scents, is  the  State.  But  the  State  is  not  to  be  deemed  an 
heir  within  the  ordinary  meaning  of  the  term,  and  takes, 
not  as  an  heir,  but  rather  because  there  are  no  heirs.* 

'  Taylor  v.  Pliillips,   3D  Vt.  238;  '  Morris  v.  Halbert,  3G  Tox.  19. 

Babbitt  v.  Bowen,  32  Vt.  437;  and         » state  v.  Ames,  23  La.  Ann.  69. 
Bee    Brashear    v.    Connor,  29  La. 
Ann.  374. 


CHAPTEE  XXXI. 

ADVERSE  TITLE. 

§  1.    Adverse  titles,  generally  con-  §  9.  Tackin.;;. 

sidei'ed.  10.  Possession  as  notice. 

2.  Adverse  convej^ances.  11.  Who    may  acquire  adverse 

3.  The  character  of  adverse  pos-  title. 

session.  12.     Reniaindcr-nien. 

4.  Color  of  title.  13.     Reversioners. 

5.  Adverse     possession     under        14.    Tenants  in  common. 

color  of  title.  15.  Persons  midtr  disability. 

0.     Constructive  possession.  IG.  Adverse  rights    as    against 

7.  Adverse  possession  from  user.  tlie  State. 

8.  Naked     possession    witliout  17.  Effect  of  adverse  possession. 

claim.  18.    Proof  to  sujiport  title. 

§  1.  Adverse  Titles,  Generally  Considered.  In  ex- 
aminations of  title  it  is  not  uncommon  to  lind  two,  or  even 
three,  conflicting  claims  of  title  evidenced  by  deeds  or  other 
matter  of  record,  while  inquiries  in  2)ais  may  further  dis- 
close claims  of  title  and  ownership  founded  upon  actual 
occupation  and  possession,  under  claims  of  right  resting  upon 
unrecorded  deeds,  undisclosed  descents,  or  prescriptive  user. 
In  some  cases  the  adverse  titles  have  a  common  origin  and 
all  flow  from  the  same  source;  in  others  they  originate 
independently  through  execution,  judicial  or  tax  sales,  or 
by  reason  of  inde})cndent  conveyances  from  individuals. 
The  questions  raised  by  these  conflicting  claims  are  numer- 
ous and  sometimes  dillicult  of  solution,  and  are  among  tlie 
most  perplexing  incidents  upon  which  counsel  are  obliged 
to  pass. 

§2.  Adverse  Conveyances.  Under  this  head  are  grouped 
all  the  conve^'^ances  emanating  from  independent  sources  and 
not  connected  with  the  original  grantor  or  forming  apart  of 
the  regular  course  of  title.     These  conveyances  may  consist 

(596) 


ADTEKSE   TITLE.  507 

of  tax  deeds  and  resulting  conveyances  whicli  have  not  been 
merged  into  the  common  ownership ;  an  assertion  of  title  by 
one  ha^*ing  no  record  evidence;  and  deeds  which  by  erroneous 
descriptions  do  not  convey  the  property  intended,  but  cover 
other  and  entirely  different  parcels.  It  is  the  practice  of  ex- 
aminers to  arrange  these  deeds  as  an  a]>pendix  to  tlie  chain, 
setting  them  out  under  the  classified  head,  "  adverse  convey- 
ances," and  prefixing  to  them  the  statement,  "  we  also  find." 
Where  an  adverse  title  appears  of  record,  followed  by  mesne 
conveyances,  and  eventually  merging  into  the  original  title, 
they  constitute  part  of  the  chain  and  are  shown  in  the  regu- 
lar course.  In  cases  of  this  kind  the  better  way  is  to  trace 
the  title  from  the  original  grantor  to  the  person  in  whom  a 
perfect  and  uneml)arrassed  title  is  found;  here  stop  and  sepa- 
rate what  follows  by  a  broad  dash,  or,  if  desired,  a  prefatory 
note,  then  show  the  tax  deed  or  other  initial  adverse  convey- 
ance and  the  conveyances  resulting  therefrom,  until  title  is 
found  in  the  person  proposed.  Now  separate  the  cliain  as 
before,  and  the  next  deed  will  commence  a  reunited  and  per- 
fect chain.  Isolated  adverse  conveyances,  as  has  been  stated, 
are  frequently  the  result  of  error,  and  are  often  followed  by 
curative  deeds  which  demonstrate  same.  "When  the  examinci' 
has  the  necessary  information  and  can  supply  same,  an  ex- 
planatory note  should  follow  tlie  adverse  deed,  thus : 

Note:  We  find  recorded  in  Book  500,  pd'JQ  ^00 ,  a  deed  he- 
tween  the  same  parties,  and  hearing  same  date  as  the 
foregoing,  conveying  property  in  the  northeast  qnartrr 
of  Sec.  10,  T.  2  N.,  R.  23  E.,  and  wherein  it  is  recited 
that  saiffdeed  is  given  to  correct  an  error  in  the  descrip- 
tion of  land  conveyed  hy  deed  recorded  in  Bool'  Jf.')0^ 
page  350  {shown  as  No.  25  of  this  examination;  or, 
shown  aJjove). 

The  forctroinj):  sufrjrostion  is  considered  the  betliT  wav  to 
tn-at  adverse  (*»>nveyanc('s,  particularly  wlicii  it  can  not  l)i' 
d('in()nstrate<l  that  tlie  adverse  c<»nvfyaiic»'  is  tin*  result  «>f 
error  and   not  tlic  a.ssertion  of  an  indt'[)ciidc'nt  title;  yet 


59S  ABSTRACTS   OF   TITLE. 

examiners  of  undoubted  standing  and  ability  liave  frequently 
deemed  an  explanatory  note,  without  any  exhibition  of  the 
adverse  deed,  suificient  for  the  purposes  of  the  abstract. 
Should  the  latter  method  be  considered  desirable,  a  statement 
similar  to  the  following  may  be  made : 

Adtyrse  Conveyances. 


In  Boole  1S5,  paffe  537,  is  recorded  a  deed  from  John  II. 
Fellows  and  wife  to  Lorenzo  Dow, 'p\ir porting  to  convey 
land  described  as:  Beginning  at  the  southeast  corner 
soxdh  of  the  Indian  Boundai'y  Line  of  southeast  quarter 
of  Section  35,  Town  J^O,  Range  13;  thence  north  on 
east  line  of  said  qtiarter  section  Ifi  rods;  thence  west  160 
rods;  thence  south  Jf.0  rods;  thence  east  160  rods,  con- 
taining J^O  acres;  and  in  Book  Jfi  of  Mortgages,  page 
519,  is  recorded  a  mortgage  from  said  Lorenzo  Dow  to 
James  Parton,  covering  same  premises;  said  mortgage 
is  released  on  margin  of  record  {as  appears  hy  our  in- 
dices). Fellows  owned  land  in  Section  35,  Town  Jfl.  Iiang<} 
13,  and  we  assume  that  said  deeds  hy  Fellows  and  Dow 
were  intended  to  convey  land  there  and  not  in  Section  35, 
Town  JtO,  Range  13,  where  he  had  no  interest  whatever. 

The  foregoing  example  is  given  to  show  the  methods  that 
can  be  and  are  sometimes  employed,  rather  than  as  a  prec- 
edent to  be  followed,  for,  although  the  conveyances  are 
sufficiently  identified  to  furnish  actual  notice  to  all  persons 
perusing  the  abstract,  of  their  character  and  purport,  and 
possibly  sufficient  explanation  is  giyen  to  warrant  the  as- 
sumption of  the  examiner,  and  in  the  instance  under  con- 
sideration, the  examiner  has  sufficiently  discharged  his  duty 
to  relieve  himself  of  all  liability,  yet  the  practice  of  show- 
ing positive  transactions  by  notes,  and  of  making  assum])- 
tions  without  expressed  authority,  is  dangerous  and  often 
mislcadin<s  and  calculated  to  involve  the  examiner  in  serious 
complications.  Any  and  every  conveyance,  incumbrance, 
lien  or  charge  which  directly  or  by  just  implication  affects, 


ADVEIISE    TITLE.  590 

impairs  or  clouds  the  title,  if  a  matter  of  reconl,  and  within 
the  dates  comprising  the  period  of  the  search,  should  be 
shown  affirmatively  and  without  expression  of  opinion  as 
rei^ards  the  legal  effect  of  the  instruments,  or  the  real  or 
supposed  intention  of  the  parties,  and  if  the  examiner  is 
also  the  counsel,  let  the  abstract  and  the  opinion  be  separate 
and  distinct  papers. 

§  8.  Tlie  Character  of  Adverse  Possession.  It  is  a  well 
established  rule  that  a  possession,  to  be  adverse,  must  be  so 
open,  notorious  and  important  as  to  give  notice  to  parties 
that  a  claim  of  right  is  intended  thereby;  that  the  right  of 
the  true  owner  is  invaded  intentionally,  and  with  a  purpose 
to  assert  a  claim  of  title  adversely  to  his;  and  to  furnish  the 
basis  of  a  substantial  title,  must  extend  in  unbroken  con- 
tinuity over  the  period  prescribed  by  the  statute  of  limita- 
tions.' This  element  of  peaceful  continuity  is  perhaps  nrore 
distinctly  material  in  conferring  title  by  adverse  possession 
than  any  other,'  and  is  a  consideration  of  primary  im])or- 
tance  in  all  examinations.  A  statutory  distinction  is  made  in 
some  States  between  a  claim  of  title  founded  upon  some 
written  instrument  or  judgment,  and  an  actual,  continued 
occupation  under  claim  of  title,  exclusive  of  any  other  right, 
but  not  founded  upon  any  written  instrument,  judgment  or 
decree;  and  the  period  of  occu])ancy  in  the  latter  case  must 
be  continued  much  longer  than  in  the  former.  Thus,  in  the 
first  instance,  the  title  may  become  i)erfect  and  ind(^f<'asil)l(» 
at  the  end  of  ten  years,  while  in  the  latter  the  period  of  lt'i,^•ll 
memory  must  have  run  to  warrant  the  presumjition  of  an 
original,  valid  entry,  and  the  loss  or  destruction  of  the  muni- 

'  Carrol  v.    Oilli.-n.   33  Ga.    .'j:}9;  Wallace,   78  N.  C.  inj;    SIuoIh  r 

Ik-atty  i:  Mason,  3i)MiI.  l<t',);  Dixon  Roherte,  04  Ga.  370.     r«>H,s<'ssion  of 

V.  C<>f>k,  47  MiHS.  220;  Laraniore  i'.  lan<l  once  «sta))li.shf4l  l>y   niahrial 

Minisli.   43  Ga.   '2H2;    li-iv-man   v,  a<'tH  of  visilili'.  n«>t(irii>u«  owiii-iHliin 

I^e,  48  Mo.  33.'>;  (.'allioun  v.  Cook,  mix«t  Ix-pn-HunuHl  to  <'ont  inn.' until 

9  Pa.  St.  22fi;  Cahill  r.  Palmer.  4.')  0|M'n.  notorioUK,  u<lvfrm'|H.'*sfHHion 

N.  Y.  484;  Hooth  r.  Small,  23  Iowa,  Im- pmviil  U>  liav»<  \hh'u  Uikin   by 

177.  another:   Clement.'*  '•    I  miKiii,  34 

»  Tyler  Adv.  Enj.    {K)7;  Groft  v.  Ark.  508. 
Weeklan-l,  31  Pa.  W"^;  Williams  v. 


coo 


ABSTRACTS    OF    TITLE. 


ments  tliat  establish  the  occupanfs  right  to  the  soil.  The 
chanicter  of  the  possession,  too,  may  be  vastly  dilTeivnt  under 
the  two  claims;  as,  in  the  lirst  instance,  a  partial  occupancy 
only  is  required,  such  partial  occupancy  drawing  to  it  con- 
structively the  possession  of  all  of  the  land  mentioned  in  the 
instrument  under  which  the  claim  is  made,  while  in  the 
latter  the  adverse  hoUling  extends  only  to  so  much  of  the 
l)reniises  as  may  have  been  actually  occupied.'  But  in 
either  event,  to  constitute  a  bar  to  the  assertion  of  the  legal 
title,  the  passession  must  be  hostile,"  and  not  a  mere  trespass,' 
and  must  also  be  visible,^  continuous,"  notorious,' delinite' 
and  inconsistent  with  the  claim  of  others,*  while  the  claim  of 
right  accompanying  such  possession  must  not  have  originated 
in  fraud."  These  are  the  universally  recognized  elements  that 
must  enter  into  every  adverse  holding,  and  unless  they  are 
]>resent  the  settled  principles  of  law  require  us  to  consider  the 
true  owner  as  constructive!}"  in  possession  of  the  land  to  which 
lie  holds  the  title.'"      A  clandestine  entry  or  possession  will 


'  What  acts  are  sufficient  to  con- 
stitute possession, are  matters  of 
local  statutory  regulation,  but,  as  a 
rule,  there  must  be  either  cultiva- 
tion or  improvement;  protection 
Vjy  a  substantial  enclosure ;  and  a 
use  of  tlie  premises,  if  not  enclosed, 
for  the  supply  of  fuel,  or  hus- 
hanthy,  or  the  ordinary  use  of  the 
occupants. 

'Turney  v.  Chamberlain,  15  111. 
271;  Tliompsou  v.  Felton,  5-i  Cal. 
547. 

3  Humbert  v.  Trinity  Ch.,  24 
Wend.  587;  Cahill  v.  Palmer,  45  N. 
Y.  479. 

^  Irving  V.  Brownell,  11  111.  402. 

6  Jackson  v.  Berner,  48  111.  203. 

«McClellan  v.  Kellogg,  17  111. 
498;  Dixon  v.  Cook,  47  Miss.  220. 

'Fugate  V.  Pierce,  49  Mo.  441; 
Grube  v.  Wells,  34  Iowa.  148. 

*  Ambrose  v.  Raley,  58  111.  5065 
Sparrow  v.  Hovey,  44  Mich.  63. 


9  Moody  t;.  Moody,  16  Hun  (N. 
Y.),  189;  Laramore  v.  Minish,  43 
Ga.  282.  The  question  whetlier 
one  who  holds  by  color  of  title 
holds  in  good  faith  or  bad,  depends 
U])on  the  purpose  with  which  ho 
acquired  the  title  relied  on,  and 
the  reliance  placed  upon  it.  If  the 
holder  received  it,  knowing  it  to  be 
worthless,  or  in  fraud  of  the  own- 
er's rights,  it  cannot  be  said  to  be 
held  in  good  faith.  Still,  many 
things  that  may  be  sufficient  to 
destroy  the  pi-esumption  of  good 
faith  may  be  insufficient  to  prevent 
the  deed  from  being  color  of  title. 
See  Hardin  v.  Gouverneur,  69  111. 
140;  Hall  v.  Mooring,  27  La.  Ann. 
596. 

'"Bliss  V.  Johnson,  94  N.  Y.  235; 
Doe  V.  Thompson,  5  Cow.  (N.  Y.) 
371. 


ADVERSE    TITLE.  GOl 

never  serve  to  set  tlie  statute  in  motion,  forin  order  to  bar  the 
true  owner  from  asserting  his  title,  he  must  have  actual  or 
constructive  notice  of  the  instrument  under  which  tlie 
adverse  claimant  enters,  or  knowledge,  or  the  means  of 
knowledge,  of  such  occupation  and  claim  of  right,'  and  the 
entry  must  be  made  and  the  possession  continued  under 
such  circumstances  as  to  enable  such  true  owner,  by  the  use 
of  reasonable  diligence,  to  ascertain  the  fact  of  entry  and 
the  right  and  claim  of  the  party  making  it." 

§  4.  Color  of  Title.  It  is  a  general  rule  that  where 
one  enters  Uj^on  land  under  a  recorded  deed,  his  entry  and 
claim  must  be  referred  to  that  deed  and  measured  by  it.* 
Such  deed,  though  void  in  fact,  gives  a  "colorable  title  "  ' 
to  the  purchaser,  and  where  it  professes  to  convey  the  en- 
tire estate,  a  claim  and  occupation  under  it  creates  an  ad- 
verse possession  as  against  all  the  world."  What  amount? 
to  a  color  of  title,  is  still  an  open  and  unsettled  (jucstion, 
thouo-h  numerous  decisions  defining  its  character  exist  in 
all  the  States  as  well  as  in  the  federal  courts,  and  although 
in  a  few  instances  documentary  evidence  is  not  required 
to  supi)ort  a  claim  under  color  of  title,'  the  weight  of 
authorit}^  and  opinion  indicate  that  a  written  instrument  is 
necessary,  so  far  good  in  appearance  as  to  be  consistent 
with  the  idea  of  go<xl  faith,  ami  purporting  on  its  face  to 
convey  a  title.'  The  definitions  in  the  books,  though 
widely  divergent  in  many  |)articulars,  yet  agree  in  the  main 
on  these  points.  A  claim  of  lieirship  has  been  held  to 
come    within  the   term,  the   supi)osed  iidicritance  forming 

'Fugate  V.   Pierce,    10    Mo.  441;  say  r.  Fry,  25  Wis.  400;  Beverly 

CrLspcn  r.  Ilannavan,  50  Mo.  5:}0;  r.  Brooke,  i)  CJu.  440;  Hamilton  v. 

Thoiiii»son  V.    Pioche,  44  Cal.  508;  BoK«fss.  03  Mo.  2;W. 
Nowlin  V.  licynokla,  25  Gratt.  (Va.)  Mlall  v.  Uiw.  102  U.  S.  401 ;  B.ll 

i;j7.  V.  I-oiiK^vorth,  0  Iiul.  273. 

»Soule    V.    Barlow,  49    Vt.  320;  •  Cooikt  i'.  Onl.  00  Mo.  431. 

Brown  r.Cockerell,  33  Ala.  151.  '  Bak.r    r.    Swan.   32    Md.    nr>r,', 

»Sf?venH  V.  BrookH.  24  Wis.  320;  Kruw  v.  Wilw.n.  79  III.  240;  Stark 

Crary  v.  Goodman,  22  N.  Y.  170.  v.  Starr,  1  Sawyi-r,  20;  Cutlcnb  v. 

*  IvJj^erton  V.  Binl,  0  Wis.   527;  Lowry,  15  Gu.  838. 
Brooks  r.  Briiyii,  3*.  III.  301;  I.iml- 


G02  ABSTRACTS   OF   TITLE. 

the  "  color,"  for  says  Gibson,  J.,  "  one  entering  In'  a  title 
(le})ending'  on  a  void  deed,  would  certainly  be  in  by  color  of 
title,  and  it  would  be  strange  if  another,  entering  under 
an  erroneous  belief  that  he  is  the  legitimate  heir  of  the 
person  last  seized  should  be  deemed  otherwise."  '  A  con- 
fusion, however,  seems  to  exist,  arising  from  the  inter- 
changeable use  of  the  terms  "color"  and  "claim  "  of  title, 
which,  as  a  matter  of  fact,  may,  and  do,  exist  separate  and 
independent  of  each  other.  To  constitute  the  former,  there 
must,  as  a  rule,  be  a  paper  title,  while  the  latter  may  exist 
wholly  by  parol."  Possession  under  a  claim  of  title,  without 
a  conveyance  or  other  written  instrument,  limits  the  person 
so  asserting  his  claim,  to  his  actual  enclosure  or  occupancy,"* 
but  when  founded  upon  a  claim  and  color  of  title,  a  construct- 
ive possession  of  the  entire  tract  will  follow  the  actual  occu- 
pancy of  any  portion,"  provided  the  deed  or  other  matter  be 
of  record.* 

§  5.  Adverse  Possession  Under  Color  of  Title.  A 
valid  and  perfect  title  is  not  required  in  order  to  entitle  a 
party  to  rely  upon  adverse  possession  under  the  statute  of 
limitations,"  nor  is  it  necessary  that  he  should  trace  title 
through  a  chain  to  any  source.'  A  deed  which  purports  to 
give  a  complete  title  will  be  sufficient  to  give  color  of  title, 
although  the  grantor  may,  in  fact,  have  only  the  rights  of 
a  mortgagee,"  or  lessee ;'  or,  if  the  deed  was  issued  on  an 

'McCall  V.  Niely,  3  Watts  (Pa.),  structive  seizin  extends  to  all  not 

72;  and  see  Cooper  v.  Ord,  60  Mo.  in  fact  occupied  by  the  intiiider: 

420;  Teabout  v.  Daniels,  38  Iowa,  Hunnicut  v.  Peyton,  102  U.  S.  333. 

158.  '  Tritt  V.  Roberts,  64  Ga.  156. 

« Hamilton  tJ.  Wright,  30  Iowa,  « Close  v.   Samm,  27  Iowa,  503; 

486;   Clagett  v.  Conlee,    16  Iowa,  Jackson  v.  Woodruff,  1  Cow.  276; 

487.  Elliott  V.  Pcarle,  10  Pet.  412;  Ford 

3  Dills  V.  Hubbard,  21  111.  328.  v.  Wilson,  35  Miss.  504;  Grant  v. 

^Brooks  V.   BrujTi,   18  111.   539;  Fowler,  39  N.  H.  104. 

Scott  r.  Elkins,  83  N.  C.  424;  Cole-  'Rawson    v.    Fox,    55    111.    200. 

man  v.  Billings,  90  111.  577;  Little  Compare  Hedges  v.  Paulin,  5  Biss. 

V.  Megquier,  2  Me.   176;  Webb  v.  177. 

Ritliardson,  42  Vt.  465;  but  if  the  ^Stevens  v.  Brooks,  24  Wis.  326. 

true  owner  be  in  actual  possession  *  Sands  v.  Hughes,  53  N.  Y.  287, 
of  any  part  of  the  lands,  his  con- 


ADVERSE    TITLE.  0O3 

erroneous  or  void  decree;'  or,  in  pursuance  of  a  sale  under 
an  iiuperfecth^  executed  trust  ;^  and  generally,  when  fol- 
lowed by  a  continuous  and  uninterrui)ted  possession  for  the 
entire  statutory  period,  it  will  constitute  an  adverse  hold- 
ing, effective  for  all  purposes,  however  groundless  tlie  sup- 
posed title  may  be.'  It  is  essential,  however,  that  the  lands 
claimed  be  fully  identified  or  described  in  the  instrument," 
for  mere  occupancy  of  land  in  virtue  and  under  a  claim  of  a 
grant  which  does  not  embrace  it,  is  not  adverse  })ossession 
sufficient  to  defeat  a  transfer  of  title,"  and  the  claim  must 
not  be  general,  but  specific." 

§  6.  Constructive  Possession.  Where  title  is  asserted 
adversely  under  a  claim  of  right,  and  by  reason  of  occupancy 
and  j)Ossession,  it  is  a  rule  of  universal  application  that  the 
extent  of  the  claim  must  be  measured  by  the  instrument 
under  w^hich  the  claim  is  made.'  AVhen  such  instrument  pur- 
ports to  conve}''  the  entire  title,  and  actual  occupancy  is  only 
had  of  a  portion  of  the  premises  described,  the  claimant  is 
constructively  in  possession  of  the  entire  tract,"  his  occupancy 
of  a  part  being,  in  contemplation  of  law,  the  occujxincy  of 
every  portion,"  but  there  can  be  no  constructive  possession 
"without  the  color  of  title'"  afforded  by  some  deed,  instrument 
or  proceeding  purporting  to  convey  the  whole  and  defining 
boundaries,  as  well  as  actual  possession  of  a  part."     ]S'or  will 

'Huls   V.    Biintf'Ti,    47    111.    :39G;  «Crary    v.   Goodinan.   22  X.   V. 

Hinklcy  v.  Green,  52  111.  223.  170;  Hallas  v.  Bell,  r>:i  Barb.  247; 

» Gebhard r.  Sattler,  40  Iowa,  152.  Pepper  v.  O'Dowd,  39  Wis.  538. 

*Ford  V.  Wilson,  35  Miss.   504;  'Washburn  v.  Cutt«'r,  17  Minn. 

Grant  v.  Fowler,  39  N.  H.  104;  Ty-  861. 

ler  Adv.  Enj.,  907;  Davis  v.  Easly,  *  Constructive  pofwessinn  lias lH>en 

13  III.  192.  dffinctl    to   Ik' a  iK^ssession  in  law, 

*  Lane    V.  Gould,   10  Barli.   2.")l;  witliuut  pf^wessiun  in  fart:  Hod^cj* 

Jaek.Mjn  v.  Wo<jdrulT,  1   Cow.   27l5;  t'.   Kddy.  3H  Vt.  327;    -Wilborn  r. 

Fug.ite  r.  Pierce,  49  M<j.  441;  Cfnii>e  AmlePHon,  37  Miss.  155. 

r.  W.lls,  3-1   I«jwa,   14«;  Brown  r.  "Brooks  v.   Bruyn,    IS    111.    539; 

Coble,  72  N.  C.  391.  Cri«|»en  v.  Hannavan,  5(t  Mo.  530. 

'  I^iverty  r.  Moore,  33  N.  Y.  058;  '*'  Wills  r.  Jackson  Maniif.  Co.,  48 

Parish  V.  anjn,  40  Cal.   33;  (JrulKj  N.  H.  491, 

V.  Wells,  34  Iowa,    148;  Wood   V.  "  FugaU«  v.  Pierce,  49  .Mo.  441. 
Banks,  14  N.  II.  111. 


604  ABSTRACTS   OF    TITLE. 

constructive  possession  be  siiiFicient  to  confer  title  to  any 
portion  in  tlie  adverse  seizin  of  anotlier.' 

§  7.  Adverse  Possession  From  Fser.  An  actual  contin- 
ued occupation  of  premises  undera  claim  of  title  exclusive  of 
any  other  right,  al  though  not  founded  on  a  written  instrument, 
judgment  or  decree,  is  yet  suiRcient,  if  extending  through  the 
entire  statutory  period,  to  confer  title  to  the  portion  so  actu- 
ally occupied.'  It  is  immaterial  to  support  title  thus  claimed 
whether  there  be  a  deed  valid  in  form,  or  whether  there  be 
no  deed,'  and  the  l^arty  ma}^  even  know  that  his  title  is  bad,' 
but  there  must  be  a  claim  of  title,  even  if  oral,  and  exclusive 
of  the  claim  of  all  others.'  The  claim  must  be  for  the  entire 
title,  and  not  subservient  to  another,"  and  there  must  be 
actual  occupancy  measured  by  a  distinct,  visible  and  marked 
possession.'  Permissive  user  can  never,  by  any  lapse  of  time 
and  even  though  continuous  and  exclusive,  ripen  into  a  title 
to  the  fee,  Avhen  the  original  entry  Avas  by  consent  of  the 
owner,  and  no  adverse  claim  of  ownership  has  been  asserted.* 

§  8.  Naked  Possession  Witliout  Claim.  "  Squatters"  or 
intruders  upon  lands  acquire  no  rights  by  reason  of  possession, 
as  the  gist  of  every  adverse  hokling  is,  that  it  is  accom- 
panied by  a  claim  of  right,  and  a  mere  trespass  can  never 
ripen  into  a  right,  so  as  to  set  the  statute  in  motion,  no  mat- 
ter how  long  continued;"  nor  will  occupation  by  mistaka  or 

J  Walsh  V.  Hill,  41  Cal.  571 ;  Jack-  toiy,  44  N.  Y.  577;  Fugate  v.  Pierce, 

son  V.  Vermylyea,  G  Cow.  (N.   Y.)  49  Mo.  441. 

6?7.  *  Indianapolis,  etc.,  R.  R.  Co.  v. 

^  Dills  V.  Hubbard,  21  111.  338;  Doe  Ross,  47  Ind.  25;  Cooper  r.  I\IcBrid(s 

t;.  Eslava,  11  Ala.  102.  4  Iloust.  (Del.)  461;  Bedell  v.  Shaw, 

»Rannels  v.  Rannels,  52  Mo.  108.  59  N.  Y.  46;  Hudson  v.  Putney,  14 

••Bogardus  v.  Trinity  Church,  4  W.   Va.   561.      Compare   Ford    v. 

Sand.  Ch.  (N.  Y.)   633;  Jackson  v.  Holmes,  61  Ga.  419. 

Wheat,  18  Johns.  40.  s  Thompson  v.    Pioche,  44    Cal. 

'Humbert  v.  Trinity  Church,  24  508:  Nowlin  v.  Reynolds,  25  Gratt. 

Wend.  587;  Rannels  r.  Rannels,  52  (Va.)  137.     Nor  can  the  successive 

Mo.  108.  possession  of  trespassers  be  con- 

'  Howard   v.  Howard,  17  Barb.  nected    to  make  the  bar    of    the 

285;  Jackson  u.  Johnson,  5  Cow.  74;  statute:    Baker  v.  Hale,  6  Baxter 

Bowman  v.  Lee,  48  ]\ro.  335.  (Tenn.),  46. 

'Corning   v.  The  Troy,  etc.,  Fac- 


ADVERSE   TITLE.  t><A. 

ignorance  suffice  to  constitute  an  adverse  holding.'  Cut  an 
entry  bv  one  without  the  color  of  title,  or  claim  of  right, 
may  subsequently  become  adverse  by  his  acquiring  and  as- 
serting a  claim  of  title;  and  the  statute  will  begin  to  run 
from  the  time  of  such  assertion.' 

§  9.  Tacking.  When  several  adverse  claimants  unite 
their  several  possessions  into  one  continuous  term,  this  is 
called  tacking.  Where  there  are  several  successive  adverse 
claimants,  the  last  one  may  tack  the  possession  of  his  prede- 
cessors to  his,  so  as  to  make  a  continuous  adverse  holdiufr 
for  the  statutory  period,  provided  there  is  a  privity  of  j>os- 
session  between  such  occupants;"  and  such  privity  nuiy  arise 
from  a  parol  bargain  and  sale  of  the  possession  of  the  prem- 
ises, followed  by  delivery  thereof,  as  well  as  by  a  fcJrmal  con- 
veyance from  one  occupant  to  the  other;*  while  actual  jiosses- 
sion  by  prior  occupants  claiming  title,  although  having  no 
color  of  title,  will  always  avail  a  subsequent  occujnuit  unik-r 
color  of  title,  claiming  under  such  prior  occupants,  in  making 
out  a  possessory  title  in  himself.'  The  element  of  continuity 
must,  however,  appear,  and  several  successive  but  uncon- 
nected disseizins  or  adverse  possessions,  though  amounting 
in  the  aggregate  to  tAventy  years,  or  such  other  period  as 
the  statute  may  prescribe,  can  not  be  tacked  together  to 
make  such  a  continuous  possession.* 

§  10.  Possession  as  Notice.  Possession,  wliile  it  may 
not  be  "  nine  points  of  the  law,"  always  has  been,  and  will 
doubtless  ever  continue  to  ha^jtrinia  facie  evidence  of  the 

'Tliomasv.    Babb,   45   Mo.  384;  111.23:?;  Wc4«r  r.  Aii.l.i-..n,  73  III. 

Fari.sli  v.  Coon,  40  Cal.  33;  Grube  431). 

V.  Wells,  34  Iowa,  14«;  Dow  V.  Mc-  'Day   ?".    Wiidtr,    47    Vt.     5W. 

K<'nney,  64  Me.  HiS.  Tlii.s  has  been  lii-Ul  to  bo  tlie  nmo 

'  Ilaniilton  v.  Wright,   30  Iowa,  of  oiu'  who  luM  uh  hi-ir.ofono  who 

480.  hi'lil  ailversi'ly  umiUt   im  re  eiaiiii 

»Shuflleton  u.  Nelm)n,  2  Sawyer  of  right:    Teal»out  r.    Daniels.  38 

(C.  Ct.),  540;  Ilaynesi'.  li^iar.lm.ui,  Iowa.  LIS. 

119  .Ma.sH.  41 1;  Ab-xander  r.  Stew-  •Shullhton  t'.  Nelson,  'i  Sjiwyer 

art.  riO  Vt.  87;  McNeek-yr.  Uingan,  (C.  ("t.).  .VM;  Maivh  r.  (Jiiflin.  .VJ 

22  01ii.)St.  37,  Ga.    320;  l'egu«»   U.  Wurley,  11  S. 

*  ShilfJleUjn  V.  NelHon.  2  Sawyer  C.  ISO. 
(C.  Ct.),  5-10;  Kruae  v.  Wilwiu.   7li 


nOG  ABSTRACTS    OF    TITLE. 

lii;;-hcst  estate  in  land,  to  wit,  asei/.in  in  foe,' and  wlicn  open, 
notorious  and  visible,  it  lias  always  been  regarded  asalloi'd- 
ing  constructive  notice  to  others  of  the  occupant's  title  and 
equities.'  P\n'  this  reason  counsel  in  framing  an  opinion 
should  always  direct  the  attention  of  his  client  to  the  rights 
of  the  person  in  possession,  if  any,  or  direct  that  an  inquiry 
in  pais  be  made  as  to  present  occu))anc3\ 

§  11.  Who  May  Acquire  Adverse  Title.  One  who 
enters  into  possession  of  land  in  subordination  to  the  title 
of  another  is  estopped  from  denying  that  title,  while  he 
holds  actually  or  presumptively  under  it ;  this  is  a  funda- 
mental rule  of  universal  observance.'  Yet  a  trustee  may 
disavow  and  disclaim  his  trust ;  *  a  tenant  the  title  of  his 
landlord,  after  the  expiration  of  his  lease ; '  a  purchaser  the 
title  of  his  vendor,  after  the  breach  of  his  contract  by  the 
latter ;  and  a  tenant  in  common,  the  title  of  his  co-tenant ; 
and  drive  the  respective  OAvners  and  claimants  to  their  action 
within  the  period  of  the  statute  of  limitations.  In  like  man- 
ner one  who  has  possession  of  land  under  an  agreement  to  pur- 
chase, which  contemplates  a  continuing  right  of  possession 
while  the  contract  is  being  performed,  and  an  absolute 
right  of  possession  by  virtue  of  its  performance,  may,  on  per- 
formance, deny  the  title  of  the  vendor;  and  thereafter  his  pos- 
session will  be  adverse."  A  grantor  remaining  in  possession 
would  seem  to  be  effectually  estopped  by  the  covenants  of  his 
deed,  and  such  has  been  held  to  be  the  law,'  yet  in  a  num- 
ber of  instances  a  grantor  who  conveys  by  quit-claim  deed 

'  Gulf  R.  R.  Co.  V.  Owen,  8  Kan.  Neb.  5.     Or  bj-  rescinding  the  lease 

409.  and  claiming  a  new  title:    Weich- 

« Redden  v.   Miller,   9.")   lU.  336;  selbaum  v.  Curlett,  20  Kan.  709; 

Pinney  v.  Fellows,  15  Vt.  525;  Per-  as  where  the  tenant  purchased  the 

kinsu  Swank,  43  Miss.  349;  Hop-  propertj'  at  tax  sale, 

pin  V.  Doty,  25  Wis.  573;  0"Rourke  ^  Catlino    v.    Decker,   38    Conn. 

V.  O'Conner,  39  Cal.  442.  262;  Stark  v.  Starr,  1   Sawyer  (C. 

3  Wilson  V.  James,  79  N.  C.  349;  Ct),  15.      Tlie    executed  contract 

Clarke    v.    Clarke,    51    Ala.    498;  then  becomes  a  sale  and  not  merely 

Hatch  V.  Bullock,  57  N.  H.  15.  an  agreement  to  purchase:  Ridge- 

*  Jamison  v.  Perry,  38  Iowa,  14.  way  v.  HoUiday,  59  Mo.  444. 

s  Nellis    V.   Lathrop,   22   Wend.  '  Van  Keuren  v.  R.  R.  Co.,  88  N, 

(N.  Y.)  121;  Mattis  v.  Robinson,  1  J.  L.  165. 


ADVERSE    TITLE.  C07 

only,  by  remaining  in  possession  of  the  property  and  assert- 
ing a  hostile  claim,  has  been  permitted  to  actpiire  a  titlo 
against  his  grantee  by  virtue  of  the  sUitute  of  hniitations; ' 
while  some  courts  have  even  held  that  a  grantor  with  Avar- 
ranty  may,  subsequent  to  the  delivery  of  his  grant,  originate 
an  adverse  possession,  and  is  not  estopped  from  asserting 
the  same  by  the  covenant  of  M'arranty,'  In  any  event  the 
possession  of  the  vendor  cannot  be  ignored  even  though  he 
may  have  conveyed  Avith  -warranty,  and  where  he  continues 
to  occupy  the  premises  all  persons  acquiring  title  from  liis 
grantee  are  chargeal)le  with  notice  of  the  claims  of  the 
grantor  and  of  his  equitable  rights.' 

§  12.  Remaindor-iiuMi.  It  is  a  well  established  principle 
that  the  statutes  of  limitation  do  not  commence  to  run 
until  the  right  of  action  or  right  of  entry  accrues.  It 
therefore  does  not  commence  to  run  against  a  renuiinder- 
man  until  the  termination  of  the  precedent  estate,'  when  the 
deed  creating  such  prior  estate  is  of  record,  or  the  part}-  in 
]iossession  has  notice  of  its  existence.  But  when  a  ]virty 
has  had  the  uninterrupted  and  undisputed  possession  of  land 
for  the  statutory  period,  and  during  that  time  has  j)aid  all 
taxes  legally  assessed  thereon,  and  has  had  neither  actual 
nor  constructive  notice  of  a  prior  unrecorded  conveyance 
creating  a  life  estate  with  a  remainder  over  to  others,  such 
possession  and  payment  of  taxes  by  him  will  be  a  bar  t(j  a 
recovery  by  such  remainder-man,  even  though  the  full  period 
of  the  statute  has  not  elapsed  since  the  termination  of  the 
life  estate,  and  notwithstanding  the  fact,  that  the  ])arty  so 
asserting  title  is,  by  the  terms  of  such  undisclosed  deed, 
nuule  a  t^^'iiant  in  common  with  such  remainder-man.* 

§  13.     Keversioiicrs.     As  against  a  revei*sioner  there  can 

'  Dorland  v.  Maj?ilton.  47  Cal.  485.  Duf,'an  v.  Fi)nc«tt,  100  III.  S81 ;  F.)KaI 

•Sherman  v.  Kane,  80  N.  Y.  57.  v.  Perro.  10  Urn.  (N.  Y.)  KK);   Car- 

» White   V.    \Vhit<',    89    III.    400;  penU'r  v.  Deiuxm,  29  Ohio  JSt.  JJTU; 

Fcml  V.  Marshall.  107  III.  VM.  G.nut  v.  Lynn.  81  I'a.  St.  IM. 

♦Christie  v.  Uage,  71  N.  Y.  189;  » DUo'an  v.  l-oUttt,  lOO  111.  581. 


COS  ABSTRACTS    OF   TITLE. 

be  no  atlverse  possession.     It  can  only  exist  against  one  enti- 
tled to  possession.' 

§  14.  Tenants  in  Coiiinion.  The  general  rule  is,  that  the 
statute  of  limitations  does  not  run  as  between  tenants  in 
common,  for  the  reason  in  ])art,  that  the  possession  of  one, 
in  contemplation  of  law,  is  the  possession  of  all,'  and  this 
is  especially  so  when  all  the  parties  derive  title  through  the 
same  deed  or  conveyance;'  but  if  a  tenant  in  common  of 
part  convey  the  whole,  his  grantee,  if  in  possession,  will 
hold  adversely  to  the  others,*  while  the  possession  of  one  of 
several  tenants  may  become  adverse,  when  his  acts  amount 
to  an  exclusion  of  his  co-tenants.' 

§  15.  Persons  under  Disability.  A  special  exception 
lias  been  made  by  the  statute  in  case  of  infants,  insane  per- 
sons, and  persons  imprisoned  on  a  criminal  charge  for  any 
period  less  than  life,"  and  their  rights  in  land  are  not  only 
protected  during  the  period  of  disability,  but  for  a  certain 
period  after  the  disability  has  ceased,  or  after  the  death  of 
a  person  dying  under  disability.  This  period  is  usually 
fixed  at  ten  years,  but  the  statutes  vary  in  this  particular. 
It  will  be  seen,  therefore,  that  before  any  positive  assurance 
can  be  entertained  that  a  title  has  become  perfect  by  adverse 
or  prescriptive  user,  it  must  appear,  not  only  that  the  prop- 
erty has  been  adversely  held  for  the  requisite  time,  but  also 
that  it  has  been  held  against  some  person  against  whom  a 
])rescriptive  title  can  be  acquired.^ 

'  Clai-k  V.  Huges,  13  Barb.  147;  ^  Florence  v.  Hopkins,  46  N.  Y. 

Geraet   v.   Lynn,   31    Pa.   St.   94;  182.     Though  adverse  possession 

Raymond  v.  Haider,  2  Cush.  (Mass.)  and  disseizin  may  not  be  in  all 

209.  particulars  identical,  their  effect  is 

«  Dugan  V.  FoUett,  100  III.  581;  the  same  for  the  purpose  of  ter- 

Ang.  on   Lim.  §  422;  Florence  v.  mmating  a  tenancy  in  common  : 

Hopkins,  46  N.  Y.  182;  McQuiddy  Id.;  Millard  v.  McMuUen,  08  N.  Y. 

V.   Ware,   07  Mo.  74;  Aquirre  v.  345. 

Alexander,  58  Cal.  21.  ^  ]\Iarried  women  are  sometimes 

3  Dungan  v.  Follett,  100  111.  581.  included  in  this  exception. 

*  Clapp  V.  Bromagham,  9  Cow.  ""  Molvin  v.   Whiting,    13    Pick. 

530;  Florence  v.  Hopkms,  46  N.  Y.  (l\Iass.)  188;  Ai-buckle  v.  Ward,  29 

182;  Rigg  V.   Fuller,  54  Ala.   141;  Vt.  55. 
Faulke  v.  Bond,  41  N.  J.  L.  527. 


ADVERSE    TITLE.  Gt>l> 

But  unless  provided  for  in  express  terms  tliis  statutory 
exception  does  not  have  the  effect  of  suspending  the  o]HM'a- 
tion  of  the  statute  of  limitations  after  it  has  legitimately 
commenced  to  run,  and  hence,  if  an  adverse  possession  com- 
mence in  the  lifetime  of  an  ancestor,  it  will  continue  to 
run  against  the  heir,  notwithstanding  any  existing  disabil- 
ity on  the  part  of  the  latter  when  the  right  accrues  to  him 
or  her." 

§  10.  Adverse  Rights  as  Against  tlie  State.  It  is  mat- 
ter of  common  knowledge  that  statutes  of  limitation  do 
not  run  against  the  State.  That  no  laches  can  be  imputed 
to  the  king,  and  that  no  time  can  l)ar  his  rights,  was  tlio 
maxim  of  the  common  law,  and  was  founded  on  the  jirinci- 
ple  of  public  policy;  that,  as  he  was  occupied  with  the  cares 
of  government  he  ought  not  to  suffer  from  the  negligence  of 
his  officers  and  servants.  The  principle  is  a])jilical»le  to  all 
governments  which  must  necessarily  act  through  numerous 
agents,  and  it  is  essential  to  a  preservation  of  the  interest 
and  property  of  the  public*  It  is  upon  this  princi})le  that 
in  this  country  the  statutes  of  a  State  prescribing  ])eriods 
within  which  rights  must  be  prosecuted  are  not  held  to 
embrace  the  State  itself,'  unless  it  is  expressly  designated,  or 
the  mischiefs  to  be  remedied  are  of  such  a  nature  that  it 
must  necessaril}'  be  included.  As  legislation  of  a  State  can 
only  apply  to  persons  and  things  over  which  the  State  has 
jurisdiction,  the  United  States  are  also  necessarily  excluded 
from  the  operation  of  such  statutes."  As  adverse  possession 
can  not  run  against  the  government,  it  logically  foHows 
tliat  the  claim  can  not  be  asserted  against  a  grantee  of  the 
government,  and  mere  possession  of  government  lands, 
though  open,  exclusive  and  uninterrui)ted  for  twenty  yeai-s, 
creates  no  im])ediment  to  its  recovery   l)y  tlie  .government, 

'  Fleming  v.  Griswold,  3  Hill  (N.  »  (;.ir.liiicr  v.  Milii-r.   47  Cal.  TiTO. 

Y.),  8."):  Jarkwjnr.  M«xjrc,  i:5  Johns.  *  riiit.-il  Stat.-s  r.  II. mr.  2  Miin-.n. 

(N.  Y.).')13.  81'^:  I\t>plu   V.   Ciilbt-rt,   1»  Joliiuj. 

»  (Jiiiwjn   V.    Cli(jut<-au,    13  Wall.  22». 
0-». 

89 


niO  ABSTRACTS    OF    TITLE 

or   by  one   who  within  tluit  period  receives  a  conveyance 
from  the  government.' 

§  17.  Etfect  of  Adverse  Possession.  When  title  to 
hind  has  been  perfected  by  twenty  years'  adverse  ])ossession 
and  enjoyment,  it  becomes  equally  as  strong  as  one  obtained 
by  grant,°  and  creates  in  the  person  so  asserting  same,  if 
otherwise  unimpaired,  a  legal  title  to  the  fee  which  is  effect- 
ive for  all  purposes.'  In  man}'  States,  ten,  seven  or  even 
five  years'  uninterrupted  possession  under  color  of  title, 
coupled  with  acts  of  ownership,  payment  of  taxes,  etc.,  will, 
under  the  operation  of  the  statute,  cure  defects  in  the  instru- 
ments under  which  the  entry  was  made,  and  bar  all  actions 
for  therecovery  of  theland,  thus  securing  to  the  occupier  a 
good  title  in  law,  no  matter  how  defective  the  title  of  the 
grantor,  or  the  instrument  of  conveyance,  may  have  been.* 
This  circumstance,  in  cases  where  no  disability  is  shown  to 
exist,  is  often  of  vital  importance  in  passing  titles  otherwise 
defective  and  lays  at  rest  a  vast  number  of  questions  that 
frequently  require  long  and  laborious  investigation  to  prop- 
erlv  solve.     The  statutory  requisites  relative  to  possession 

>  Oaksmith  v.  Johnson,  92  U.  S.  "Sherman  v.  Kane,  86  N,  Y.  57; 
343.  But  while  it  is  true  that  mere  Schneider  v.  Botsch,  90  111.  577; 
lapse  of  time  and  continuance  of  Bowen  v.  Pi-eston,  48  Ind.  367. 
possession  without  pretense  of  Tlie  presumption  of  a  grant  from 
title,  or  under  pretense  of  avoid  adverse  possession  continued  for  the 
title,  can  not  be  set  up  against  the  statutory  term,  is  not  founded  on 
government,  yet  long  possession  is  any  probability  of  an  actual  grant, 
nevertheless  a  strong  weapon  of  but  is  a  positive  rule  established 
defense  in  the  hands  of  one  who  for  quieting  titles:  Melvm  v.  Wad- 
can  show  reasonable  proof  that  the  dell,  75  N.  C.  361. 
title  of  the  government  has  been  ^  Covington  v.  Stewart,  77  N.  C. 
parted  with  and  has  devoh-^d  on  148. 

him;  so  held,  where  a  patent  had  ■*  Ryan    v.    Kilpatrick,   66    Ala, 

been  issued  to  one,  of  lands  then  332;    Hunton  v.   Nichols,   55  Tex. 

in    possession    of     another,    who  217;  Stark  v.  Brown,  101  111.  395; 

claimed  same  by  virtue  of  a  selec-  Harris  v.   McGovern,  99  U.  S.  161; 

tion  bj^  the  State  in  lieu  of  section  Moingona    Coal  Co.    v.  Blair,    51 

sixteen,  but  to  prove  which  no  pri-  Iowa,  447;  Jones  v.  Patterson,  62 

niary  evidence  could  be  adduced.  Ga.  527. 
See  Hedrick  v.  Hughes,  15  Wall. 
(U.  S.)  123. 


ADVERSE    TITLE.  611 

and  perfection  of  title  must  be  full}'-  ascertained,  however, 
either  by  record  evidence  or  aliunde,  before  the  l)ar  of  the 
statute  can  be  relied  on. 

§  IS.  Proofs  to  Support  Title  ])y  Adverse  Possession. 
When  the  title  offered  is  adverse  in  its  character,  counsel 
should  seek  by  inquiries  in  pais  to  demonstrate  its  validity 
before  passing  same.  The  highest  and  best  record  jiroof 
that  could  be  adduced  Avould  be  the  decree  of  some  court 
of  competent  jurisdiction,  either  in  an  action  of  ejectment 
or  a  suit  to  quiet  the  title.  A  deed  purporting  to  convey 
the  title  is  next  in  order,  while  pa^^ment  of  taxes  and  the 
like  still  further  tend  to  strengthen  it.'  Many  of  the  facts 
which  go  to  confirm  an  adverse  title  are  not  capable,  liow- 
ever,  of  affirmative  showing  in  an  abstract,  and  evidence 
concerning  them  must,  from  the  nature  of  the  title,  be  dis- 
closed aliunde.^ 

In  an  examination  of  title  a  much  <T:rcater  de*2:ree  of 
strictness  in  the  proof  should  be  insisted  upon  than  would 
be  necessary  to  support  a  claim  in  a  legal  proceeding.  In 
the  latter  case  affirmative  evidence  is  usually  all  that  is  re- 
quired, but  in  the  former,  inasmuch  as  there  is  no  one  to 
present  negative  evidence,  counsel  should  require  the  per- 
son asserting  the  title  to  satisfactorilv  show  tliat  none 
exists ;  as,  that  the  claim  is  not  liable  to  be  defeated  by  the 
infancy  of  heirs  of  the  servient  estate,  or  the  lunac}'-  or  dis- 
ability of  parties  who  might,  were  it  not  for  such  disability, 
be  able  to  estaljlish  a  chum. 

'  Paying  taxes  on  land  is  not  evi-  '  Consult  TurntT  v.  Hall,  00  Mo. 

(lence  of    possession,    Imt  K*^fs  to  271;  Howlaiul  r,  I't-nutfry  .As-soc, 

show  a  claim  of  title:     I'aine  v.  CG  liarh.  :]W;  Soule  r.  Karlow,  48 

Hutchins,   49  Vt.   314;   Brown   v.  Vt.  132;  Harnagc  r.  Ii.rry.  43  Tex. 

Ro«e,  48  Iowa,  231.  507;  Kerr  v.  llitt,  75  111,  51. 


CIIAPTER  XXXII. 


OPINIONS  OF  TITLE. 


§1- 

Perusing  the  abstract. 

§  n. 

0 

Note  taking. 

IS. 

3. 

Examination  of    the    muni- 

19. 

ments. 

20. 

4. 

Examination  of  deeds. 

5. 

Examination    of    legal    pro- 

21. 

ceedings  and  judgments. 

22. 

6. 

Marginal  notes  and  requisi- 

23. 

tions. 

24. 

7. 

Continued. 

.  25. 

8.. 

Answers  to  requisitions. 

9. 

Aflidavits  of  pedigree. 

2G. 

10. 

Analysis  of  title. 

11. 

Analj-tical  chains. 

27. 

Vi. 

Sketch  maps. 

28. 

13. 

Preservation  of  memoranda. 

29. 

14. 

Passing  the  title. 

15. 

What  constitutes  a  valid  title. 

30. 

16. 

Flaws. 

Uloudsupon  title. 

Incjuiries  in  jmls. 

Continued — Mechanics' liens. 

Continued — Easements  and 
Servitudes. 

Continued — Homesteads. 

Printed  copies. 

Framing  opinions. 

Opinions  of  title. 

Continued — Certificates  of  ti- 
tle. 

Opinions  based  upon  the  ab- 
stract. 

Perspicuity  of  expression. 

Oral  opinions. 

Liability  for  eiToneous  opin- 
ions. 

Conclusion. 


§  1.  Perusing  the  Abstr.act.  ISTo  spocific  rule  can  be 
laid  down  in  rco-ard  to  the  perusal  of  the  absti-act  by  coun- 
sel, as  this  is  something  which  depends  entireh'-  on  the 
habits  and  professional  methods  of  the  individual.  "The 
perusal  should,  if  the  length  of  the  abstract  will  permit  of 
it,"  says  Sugden,'  "  be  finished  at  one  sitting,  although  any 
difficult  point  of  law,  the  whole  bearing  of  Avhich  is  not 
ascertained,  may  properly  be  reserved  for  further  and  sep- 
arate consideration;"  and  this,  perliaps,  will,  to  the  majority 
of  the  i)rofession,  be  found  to  be  the  method  best  calculated 
to  produce  satisfactory  results.  "  It  may  sometimes  be  use- 
ful," sa^^s  the  same  author,'  "  to  glance  over  the  abstract  in 

•  2  Sugd.  on  Vendors,  10  (Am.  ^  Ibid.  10  (Am.  Ed.). 

Ed.). 

(G12) 


OriNIOXS    OF   TITLE.  613 

the  first  place,  in  order  to  obtain  a  general  view  of  the  title, 
and  experience  will  rajiidly  point  out  when  a  subsequent  part 
of  the  abstract  nuiy  be  looked  into  advantageously  before  its 
proper  turn;  but,  speaking  generally,  an  abstract  should  be 
perused  but  once,  and  that  once  efFectually.  The  party  should 
never  pass  on  until  he  thoroughly  comprehends  what  he  has 
already  read;  the  advancing  in  a  dithcult  title,  in  order  to 
comprehend  what  you  have  passed  and  do  not  understand, 
often  leatls  to  insurmountable  dillieulties."  The  experience 
of  the  writer  would  indicate  that  the  remarks  just  quoted 
furnish  a  good  method,  with  some  slight  variations,  for  all 
ordinary  examinations,  but  the  difference  in  the  plan  of 
compilation,  as  well  as  the  effect  of  the  instruments  with 
reference  to  registration,  notice  and  other  incidentals  not 
common  to  the  English  abstract,  renders  a  somewhat  dif- 
ferent course  necessary  from  that  pointed  out  by  ^Ir.  Sud- 
den, Whether  the  abstract  be  long  or  short,  and  the  title 
simple  or  complicated,  a  general  perusal,  in  order  to  obtain 
a  preliminary  view,  should  first  be  made.  This  jwrusal  is 
only  to  establish  the  fact  of  an  apparent  chain  of  title  from 
its  source,  the  government,  or  from  some  person  ])r()p().sed 
in  whom  the  title  is  assumed  to  be  good.  To  a.ssist  in  arriv- 
ing at  a  correct  estimate,  an  analysis  of  the  alxstract  must 
alwa3's  be  made  in  intricate  cases,  and  the  same  will  be 
found  useful  in  every  case.  Having  established  the  fact  of 
ap])arent  title  extending  in  uiilu-ol^cn  s<'(|iiciic('  rium  the 
initial  point  to  the  person  in  whom  it  is  last  assorted,  a  crit- 
ical review  of  every  remove'  nuist  then  be  made  to  deter- 
mine its  effect  and  validity,  in  much  the  same  manner, 
though  not  for  the  same  ]>ur|)ose,  as  the  Knglish  eoiin.sel  ex- 
amin«'S  the  muniments.  All  defects,  whether  of  form  or 
substance,  an?  noted  n]i<»n  the  iin.ilysis  just  mentione<l, 
togetln'r  w  ith  notes  of  discrepancies,  objections   and  re<jui- 

'  For  want  of  !i  l»rtt<T  namo,  each  all  nninhcrisl  mrintim  from  tin*  N*- 
link  in  tin-  cliaiii,  \vlii-tli<T  l»y  i1<m'»1,  ^inniiij^,  and  rffcrri-tl  to  liy  nunilicr 
will,  mortK<'»K<*.  I''<'»M<',  L't<'.,  iH railed  wluMU-ver  occiutiuli  culla  for  rtft-r- 
.-i  "  rcinovc,"  and  tiiu   reniovif*  :ir<j  cnce. 


(ili  ABSTRACTS   OF   TITLE. 

sitions  for  further  inforiiiatioii.  It  wcnild  be  unwise,  liow- 
ever,  to  lay  down  any  unvarying  rule  for  a  nuitter  of  this 
kind.  !Men's  minds  are  not  alike,  and  the  methods  that 
insure  the  best  results  in  the  case  of  one,  may  be  entirely 
inadequate  in  the  case  of  another.  The  counsel's  personal 
})rofessional  habits  Avill,  after  all,  be  the  best  guide,  but 
should  he  have  no  decided  habits  of  professional  thouglitor 
study,  it  is  believed  the  course  indicated  in  this  chapter  will 
enable  him  to  form  better  opinions,  and  arrive  at  more 
satisfactory  conclusions,  than  any  haj)hazard  or  undeiined 
methods  possibly  can. 

§  2.  >'oto  Taking.  The  real  utility  of  note  taking,  as 
an  aid  to  study  or  investigation  in  any  })ursuit,  must  ever 
remain  an  open  question,  yet  it  can  not  be  denied  that  in 
the  examination  of  complicated  titles  the  use  of  notes  is,  in 
a  majority  of  cases,  of  undoubted  benefit,  as  well  in  unrav- 
eling a  tangled  chain  as  in  framing  subsequent  opinions. 
In  the  judgment  of  some  writers,  counsel  will  find  it  the 
best  and  surest  method  of  arriving  at  a  just  conclusion,  to 
trust  to  his  view  of  the  title  on  the  face  of  the  abstract 
itself,  without  incumbering  himself  with  or  relying  upon 
notes,'  the;^'  being  regarded  as  unnecessary  details  which 
often  serve  to  distract  the  attention.'     Properly  and  me- 

'2  Sugd.  on  Vendors,  10    (Am.  he  wislies  "  to  remember  a  thing, 

Ed.).  the  last  method  available  is  to  coin- 

"^  Tlie    prejudice    which    exists  mit  it  to  paper.     This  is,  with  me, 

among  many  distinguished  mem-  to  put    it  out  of  the  jurisdiction 

bers  of  the  profession  against  the  of  the  memoiy."    This  prejudice, 

use  of  notes  as  an  aid  to  study  or  however,   is  mostly  in  regard  to 

investigation,  refei's  more  particu-  note-books  as  a  means  of  assisting 

larly     to     common-placing     and  the  memoiy,  and  the  author  last 

abridging,   and  though    this    was  quoted  admits  the  utility  of  notes 

recommended  by  the  earlier  writ-  taken  by  a  lawyer  in  looking  up  a 

ers,    notably  Fulbeck    (1599),    Sir  question  on  which  to  advise  a  ch- 

Matthew  Hale  (1G88),  and  others  of  ent,  or  references  wliich  will  ena- 

later  periods,  as  Mr.  HofTmafi,  in  ble  him,  if  litigation  is  afterward 

our  ovra  tune  and  countiy,  mod-  carried  on,  to  go  on  with  the  case 

em  writers  like  Mr.  WaiTen,  Mr.  witiunit  a  fresli  search.     See  Bish. 

Bishop,  etc.,  strongly  condemn  the  Fu-st  Book  of  the  Law,  ij  423. 
practice.    Mr.  Bishop  says  that  if 


OriNIOXS    OF   TITLE.  015 

thodically  used,  however,  notes  Avill  usually  be  found  an 
important  aid,  while  in  coniiilicated  cases  they  appear  al 
most  indispensable.  Particularly  is  this  true  in  making  an 
analysis  of  title,  where  the  interest  of  every  person  con- 
nected with  the  title,  or  possessing  any  rights  in  the  land, 
must  be  ascertained  at  every  remove,  and  notwithstandino- 
the  fact  that  so  high  an  authority  as  Mv.  Sugden  condemns 
their  use,  the  American  counsel  will  lind  that  in  a  majoritv 
of  instances  he  must  resort  to  them  or  run  the  risk  of  over- 
looking some  important  matter  in  making  up  his  linal 
opinion. 

§  3.  Examination  of  the  Muniments.  In  addition  t<> 
the  general  survey  of  title  from  all  the  instruments  and 
proceedings  generally,  each  particular  stej)  must  be  exam- 
ined technically  and  critically,  and  its  own  sulKciencv  or 
insufficienc}'-  passed  upon.  Under  the  English  SN^stem  this 
would  consist  of  a  comparison  of  the  original  insti-uments 
with  the  abstract,'  but  this  task  under  the  American  svs- 
tera  is  supjjosed  to  have  been  satisfactorily  performed  l)v 
the  examiner,  and  all  that  counsel  is  expected  to  do  is  to 
see  that  the  instruments  as  they  are  presented  are  sulllcient 
inform  and  substantially  correct.  This  task  is  the  most 
arduous  part  of  the  examination,  for  the  sulliciency  of 
every  instrument  and  proceeding  must  not  only  be  investi- 
gated with  respect  to  itself  but  freipiently  witli  reference 
to  numerous  other  instruments  in  the  chain  and  s«)mclimes 
in  connection  with  matters  not  disclosed  by  the  abstract. 
Thus,  a  deed,  by  the  donee  of  a  i)o\V(r  under  a  will  to  dis- 
)»ose  of  the  ]»i-op(.'rty  i)y  last  will  and  testament,  lie  having 
also  the  use  of  the  land  for  life,  presents  two  distinct  pha.ses. 

'  nie  duty  of  a  Boliritor  in  exam-  execution,  nth'sUition.  iM<Ioi-s»><l  n'- 

iniii;;  a!i  aljstract  is  thus  HUiiinu'tl  ceiptw,   rc^^istration,   Ktaiii|is,  rtc ; 

up  by  Mr.  Dart.     Hi'  sayH;     "Tlio  an<l  •Itlily,  that   there  are   no   in- 

ol)j<'rt  of  the  examination  is  to  as-  dorHi'd   notieeH,   nor  any   eircum- 

•rertiin,  1st,   tliat   what  han   l)een  8tane«*«  atteniliuf;  the  mcMle  of  ex- 

al>Htra<-t<-iI  ia  correctly  aI»Ktra<"t<Ml;  eciition,  att«*Ktatiuti,  i-t*-.,  et<'.,  rn.\- 

2n(lly,    that    wljat    iH    omitt'-d    Ih  cnlat<*d  t-o  cxi-it*' Hiwiiiciun."    l)arl 

di-aiiy  initnaU-riai;  !Mly,  tliat  t!io  on  Vendors,  JWl. 
ducumetitM  are  jiprfect  OH  re«i»ectB 


(510  ABSTRACTS   OF    TITLE. 

In  tlio  first  place  the  instrument  itself  must  be  considered 
Avith  relerence  to  its  formal  parts;  its  date;  registiution  ; 
estate  conveyed — a  most  vital  point ;  execution,  etc. 
Viewed  onh'-  in  this  light  it  ma}'  be  insufficient  as  fail- 
ing to  disclose  the  intention  of  the  donee  to  execute 
the  power,  and  though  purporting  to  convey  the  fee,  con- 
veys only  the  life  estate  of  the  grantor.'  In  tlie  second 
place,  the  deed  must  be  construed  in  connection  with 
the  will  granting  the  power,  and  its  legal  sufficiency  con- 
sidered in  relation  to  such  will,  presuming  that  in  form 
it  is  unimpeachable  and  f ulh'  discloses  the  ]iower  and  evinces 
the  intention  of  the  grantor  to  work  under  it,  Now  it  is  a 
vexed  question  as  to  whether  it  is  possible  for  the  donee  of 
a  power  to  make  any  disposition  of  the  subject  of  the  ])ower 
save  in  the  manner  indicated  in  the  instrument  grantinfj 
same.''  An  important  question  is  here  presented,  therefore, 
and  u})on  its  solution  depends  the  validity  of  the  proffered 
title.  The  donor  of  the  power  intended  that  it  should  be 
executed  by  the  will  of  the  donee;  he  has  attempted  to  exe- 
cute it  by  deed."  Here  counsel  must  refer  to  the  Avill  and  to 
the  grant  of  the  power  therein,  and  the  two  must  be  care- 

'  Dunning  v.  VanDusen,  47  Ind.  generally  in  this  country,  have  de- 

423;  Jassey  v.  "Wliite,  28  Ga.  295;  termined  that  when  a  power  is  to 

and  see  Funk  v.  Eggleston,  92  111.  be  executed  by  will,  the  donor  in- 

515.    In  order  to  execute  a  power  tended  that  it  should  remain  under 

it  is  not  absolutely  essential  that  a  the  conti-act  of  the  donee  "  to  the 

deed  should  recite  or  even  refer  moment  of  his  death."     And  the 

to  the  power,  where  it  was  niani-  authorities  are  numerous  and  imi- 

festly  the  intention  of  the  party  to  form  in  enunciating  the  principle 

execute  the  power.    But  where  the  that  the  donee  can  not  enlarge  and 

maker  has  an  estate  wliich  will  pass  amplif  j^  the  scope  of  the  power,  but 

without  executing  the  power,  and  must  be  strictly  controlled  in  its  ex- 

the  instrument  is  silent  on  that  ecutionby  the  declared  intention  of 

point,  as  in  the  case  supposed,  the  the  donor;  and  that  a  power  to  be 

law  will  presume  that  he  intended  executedbywill  can  not  be  executed 

such   estate    and  no  more:     See,  by  deed,  and  equit}"  will  not  relieve 

Pease  r.  Pilot  Knob  Iron  Co.,  49  if  the  attempt  is  made:  Farwell  on 

Mo.  124.  Powers,  264;  Reid  v.  Shergold,  10 

•  See  page  359  for  a  discussion  of  Ves.  (Eng.)  370;  Wilks  v.  Burns,  16 

this  subject.  Reporter,  143. 

*The  com-ts  in  England,  and  very 


orixioxs  or  title.  017 

fully  considered  in  relation  to  their  effect  upon  the  title. 
This  is  but  an  instance,  but  is  sufficient  to  ilhistrate  the 
matter  and  to  show  the  importance  of  this  branch  of  the 
examination  as  well  as  the  care  and  attention  that  must  be 
bestowed  upon  it. 

§  -1.  Examination  of  Deeds.  It  is  not  proposed,  nor  is 
it  necessary,  to  recapitulate  all  that  has  preceded  reUitive  to 
the  fonnalities  or  legal  effect  of  instruments  and  |)roceedinn:s 
offered  in  support  of  title,  but  it  may  be  well,  at  this  point,  to 
brielly  call  the  attention  of  counsel  to  the  prominent  features 
of  same  as  they  are  presented  in  the  abstract.  After  a  ]>roj)er 
incei)tion  of  title  has  been  shown,  or  where  same  has  Ijcen 
satisfactorily  established  in  some  person  at  some  delinite 
period,  either  by  assumption  or  investigation,  the  lii-st  lUity 
of  counsel  is  to  see  that  the  course  of  title  is  uninterrupted 
from  that  person  and  ]ieriod.  For  this  purpose,  observe  the 
names  of  parties  and  dates  of  instruments  down  fhrough  the 
entire  chain,  and  note  all  places  where  the  chronological 
sequence  is  broken  or  in  inverse  order.  This,  with  a  general 
view  of  each  instrument,  constitutes  the  preliminary  survey. 
An  analysis  of  the  abstract,  if  it  be  a  long  or  comjilicated 
title,  must  now  be  made,  and  the  sufficiency  or  effect  of  every 
remove  noted  therein.  Again  return  to  tlie  fli'st  instrunn'ut 
and  read  same  carefully,  observing  the  following  jxiints, 
which,  for  greater  certainty,  it  is  well  to  put  interrogatively. 
The  parties:  are  they  ])roi)erly  named  and  do  tluy  imludo 
all  who  by  the  initial  matters  are  sIkjwu  to  possess  title  <»r 
interests?'  Have  they  all  executed,  and  is  the  e.xecution 
correct  in  form  ?  Observe  in  this  connection  any  a|iparent 
ditferences  in  the  orthogra[)hy  of  names  as  shown  in  prior  or 
subsequent  conveyances,  and  in  case  such  dilfercnces  appear, 
makea  requisition  for  further  infoi'niati(»n  diselosing  identity. 
Sec  that  c<jrrect  descrij^tio  jHrnome  acconij)anies  the  nauu's 

'  TliP  h%:i\  flTect  of  the  miitU'ra  to  tlio  variouH  IumkIh,  mul  Hiil)iliviH- 

incntioru'il  in  thia  sc'ction  liav*-  all  ions   undtT  which  they  will    n'V«t- 

|j«.'fn  di.stiiKSf<l  in  (itln-r  parts  of  the  ally  la-  found  for  uxleudcii   di»cua- 

work  and  tlx-aiilhorilii-H  relating;  to  siuuit. 
Siiino  jfivcn.     TIk*  reader  in  referred 


CIS  ABSTRACTS   OF   TITLE, 

as  indicative  of  the  capacity,  domestic  relations,  etc.  Wlicrc 
one  convoys  alone,  no  clue  being  given  as  to  his  doniostic 
status,  an  inquiry  as  to  marriage  can  never  be  safely  omitted. 
In  case  of  corporate  conveyances,  require,  if  necessary,  addi- 
tional evidence  relative  to  the  power  of  the  corporation  to 
receive,  hold  and  convey,  as  well  as  to  show  proper  execution. 
The  estate:  what  estate  i)urports  to  be  conveyeil  ?  If  tlie 
entire  estate,  observe  by  reference  to  prior  conveyances  what 
estate  is  held  by  the  grantor,  for  he  can  convey  no  more  than 
he  possesses,  whatever  be  the  form  of  words  used.  Is  it 
incuuibered  by  expressed  or  latent  liens?  Has  the  right 
of  dower,  in  a  proper  case,  been  relincjuished  ?  Have  the 
homestead  rights  been  waived?  and  if  attempt  lias  been 
made  in  either  case,''has  it  been  successfully  accom[)lislie(l  ? 
If  the  abstract  fails  to  disclose  these  facts,  make  a  req- 
uisition for  further  information.  The  property  :  does  the 
description  corresi)ond  in  essential  parts  to  the  caption  of 
the  abstract,  or  to  the  subjest  of  the  examination?  Does  it 
correspond  with  prior  conveyances  ?  Observe  carefully  for 
omissions  and  misdescrij)tion.  The  covenants  are  not  essen- 
tial to  title  and  being  simply  for  the  further  assurance  of 
the  purchaser,  may  be  disregarded  except  when  they  become 
necessary  to  show  estoppel.  The  conditions  are  important; 
observe  in  Avhat  manner  they  may  affect  title  by  reason  of 
non-performance  or  breach.  Do  they  disclose  a  possibility 
of  divesture  of  title  at  some  future  period,  or  confer  upon 
the  grantor  contingent  reversionary  rights  of  re-entry  or 
forfeiture?  If  the  deed  itself  is  the  result  of  prior  agree- 
ment, does  it  substantially  conform  to  such  prior  agreement 
as  shown?  This  inquiry  is  not  always  important,  but  may 
become  so.  The  dates :  compare  the  dates  respectively,  of 
execution,  acknowledgment,  and  registration.  Do  they 
show  a  proper  correspondence  ?  Compare  these  dates  with 
those  of  prior  and  sul)se(pient  conveyances.  In  case  of  con- 
flicting titles  from  the  same  source,  this  is  very  imjxn-taiit 
to  show  priority. 

§  5.     Examination   of  Legal   Procoocliugs   and   Jiidg- 
iiicnts.     So  much  has  been  said  upon  this  subject  in  the  pre- 


OPINION'S   OF   TITLE.  010 

ceding  chapters  that  little  remains  -without  indulginfir  in 
repetition,  yet  as  it  has  long  been  custoinaiy  in  nearly  evorv 
]\irt  of  tlie  country  to  look  solely  to  deeds  as  evidences  of  title, 
it  is  the  desire  of  the  writer  to  strongly  impress  upon  the 
minds  of  examiner  and  counsel  that  all  conveyances  result- 
ing from  legal  proceedings,  aside  from  their  prima  facie 
quality,  are  valueless  as  evidence  without  proof  of  capacity  in 
the  grantor,  and  this  can  come  only  from  the  fact  of  jurisdic- 
tion. Should  evidence  of  this  fact  be  wanting,  a  requisition 
must  be  made  for  further  information  concerninir  same,  and 
in  no  case  should  a  deed  be  passed  without  full  proof  of  its 
validity.  "Where  official  deeds  of  an}^  kind  are,  by  statute, 
made  presumptive  evidence  of  their  own  validity  and  of  the 
validity  and  regularity  of  the  anterior  proceedings  upon  which 
they  rest,  and  counsel  relying  on  t\\Q prima  facit  evidence  thus 
presented  dispenses  with  proof  of  prior  regularity  and  juris- 
diction, prudence,  as  well  as  fair  dealing,  would  suggest 
that  special  reference  to  such  facts  be  made  in  the  opini<jn, 
that  the  client  and  his  assigns  may  know  that  the  title 
])assed  is  a  prima  facie  title  only,  and  has  not  been  demon- 
strated. In  the  preliminary  measures  to  all  judicial  sak-s 
counsel  will  first  observe  that  the  jiroceeding  is  apjiarently 
regular  and  formal;  this  is  not  vital,  but  may  in  some 
instances  suggest  an  inquiry  that  requires  answer.  Next,  he 
should  observe,  the  parties:  are  they  identical  (inactions 
in  jyersonam)  with  the  persons  who  now,  or  at  some  foniK-r 
period,  have  held  title,  or  possessed  equities  cajiable  of  be- 
ing reached  by  execution,  in  the  lands  under  consideration  A 
Kesolve  any  doubts  that  may  arise  by  a  requisition.  Affi- 
davits of  identity  and  diselaimer  are  about  the  best  avail- 
able means  for  determining  this  point.  Do  the  names  in 
process,  pleadings  Mn<l  judgment  corresju»nd  ?  lias  there 
been  a  ])ersonal  appeai'anee,  or  was  the  judgment  taken  on 
default?  If  th(!  hit t<'r,  does  the  abstract  show  a  cIik'  and 
legitl  service,  either  ])ersonal  or  substituted  ?  The  subjeet- 
matt^'r:  do  th(5  phadin/^'s  disclostMV  cause  (tf  action  wilhin 
the  jurisdiction  of  th(!  court  ?  The  judgment  or  <lecree  :  is 
it  regular  in  f«»rm,  i.  i:,  definite,  certain,  etc.?     Does  it  cor- 


C20  ABSTRACTS    OF    TITLE. 

respond  with  the  process  and  ])lea(liiiLr,  ?.  ^.,  ]\ii'ties  and 
allegations?  The  sale:  is  it  \Yarranted  by  the  prior  pro- 
ceedings? Is  the  selling  officer  clothed  with  proj)er 
authority  ?     AVas  it  conducted  according  to  law  ? 

§  6.  Marginal  Notes  and  Re«iuisitious.  It  will  be  re- 
membered that  in  England  the  abstract  is  compiled  almost 
entirely  from  original  documents,  and  tbat  devious  courses  as 
well  as  intervals  of  title  are  sup])leniented  and  lilled  up  by 
matter  which  to  the  American  examiner  would  be  entirely 
extraneous.  So  the  English  counsel,  as  he  proceeds  in  the 
perusal,  frequently  calls,  in  the  margin,*  for  evidence  of 
facts  whicli  he  supposes  may  be  material  and  will  readily  be 
produced,  and  further  notes  such  objections  to  the  vendor's 
title  as  he  thinlvs  proper;  all  of  wdiich  must  be  satisfactorily 
answered  and  met  by  the  vendor  and  his  solicitor.  In  a  less 
degree,  the  same  procedure  may  be  followed  by  the  Ameri- 
can couns3l,  thiugli  many  of  tha  "  requisitions"  necessary 
to  the  i)roper  elucidation  of  an  English  title  are  unnecessary 
in  tlie  United  States  by  reason  of  our  system  of  registration 
and  its  attendant  doctrines  of  notice  and  estoppel.  "Where, 
however,  a  descent  occurs  in  the  abstract,  and  a  deed  is  shown 
executed  by  the  "  heirs  at  law  "  of  the  person  shown  to  be 
last  seized,  a  call  should  be  made  for  further  inquiry  or  evi- 
dence touching  the  legitimacy  of  the  claim  of  title  thus  as- 
serted. So,  too,  of  a  partition  among  heirs,  by  the  mutual 
interchange  of  deeds,  in  which  minors'  rights  may  be  affected. 
Frequently  a  death  is  suggested  inferentially,  as  where  a 
man  and  Avife  convey,  and  on  subsequent  re  vesture  of  title 
the  man  alone  executes  a  deed.  In  the  same  way  a  mar- 
riage may  be  suggested,  and  in  every  case,  where  an  individ- 
ual convc}' s  with  no  words  descriptive  of  the  person,  inquiry 
should  be  made  in  regard  to  marriage.  American  abstracts 
are  not  made  with  a  "  margin,"  however,  and  the  little 
strip  on  the  left  hand  side  of  the  sheet  was  not  left  to  write 

'  The   English    abstract    is    fre-  the     observations     of    examining 

quently  written  upon  a  sheet  with  counsel.     The    calls    and    requisi- 

four  margins  (so  called),  the  outer  tions  made  on  this  margin  thxis 

left  hand  one  being  left  clear  for  become  a  part  of  tlie  abstract. 


OPINIONS    OF   TITLE.  G21 

or  scribl)le  on,  nor  should  the  examining  counsel  use  it  foi- 
that  purpose.  If  bv  chance,  or  sheer  i)ervcrsity,  he  should 
do  so,  his  writing  should  all  be  erased  before  the  abstract 
leaves  his  hands,  that  what  he  has  written  may  not  confuse 
others  or  b^  mistaken  for  the  work  of  tlie  abstract  maker. 
Objections  may  be  noted  on  his  analysis,  or  preserved  on 
separate  sheets,  and  when  required  for  use  may  be  formally 
drafted  and  annexeil  to  the  abstract,  or  embodied  in  his  opin- 
ion. Even  in  Engh\nd,  where  the  custom  originated,  it  seems 
to  be  generally  discouraged  by  modi^rn  conveyancei*s  and 
solicitors,  as  will  be  seen  by  the  next  ])aragra])h. 

§  7.  Coutimied.  The  American  system  of  title  abstracts, 
or  at  least  that  expounded  in  this  work.  d(^es  not  contemplate 
the  marginal  dinsions  used  in  the  compilation  of  English  ab- 
stracts, and  hence,  the  onl}'^  margin  is  the  narrow  strip  on  the 
left  hand  of  an  ordinarily  ruled  page  of  legal  cap,  whicli  is 
often  used  for  lead  pencil  memoranda,  all  of  which  should  l)e 
erased  before  the  abstract  is  returned  to  the  client.  It  would 
seem  to  be  the  present  custom  of  English  counsel  to  make 
their  formal  requisition?;  on  a  separate  sheet  of  paper,  which 
has  been  divided  longitudinally  by  being  folded  down  tlie 
middle.  Upon  the  left  half  of  this  sheet,  counsel,  from  the 
notes  taken  in  the  course  of  perusing  the  abstract,  draws  his 
questions,  inquiries,  objections,  etc.,  and  delivers  same  for 
answers.  The  vendor,  or  his  solicitor,  then  peruses  the 
requisitions,  and  ])roceeds  to  the  reply  to  them  on  the  right 
half  of  the  sheet,  tlie  (piestions  and  answei-s  being  numbered 
inconsecutive  order,  and  the  re]»lies,  so  far  as  practicable, 
being  written  opjiosite  to  the  recjuisitions.  It  is  not  thouglit 
that  this  is  prac-ticed  to  any  considerable  extent  in  this 
country,  or  at  least,  if  pnicticed,  it  has  never  been  l)rought 
to  the  attention  of  the  writer.  In  modilied  form  it  might 
be  us(,*d  to  advantag*'. 

Tiie  methotl  may  be  of  advantage  to  American  pnictiti<»n- 
ers;  a  form  taken  from  TJall's  "  Popular  Conveyancer"  (Lou- 
don, l^TTj,  is  therefore  given  herewith. 


022 


ABSTRACTS    OF   TITLE. 

Brown  fo  Jones. 
Requisitions  on  Titlo  and  Replies  thereto. 


Requisitions. 

1.  The  loiise  of  tlie day  of 

. . . . ,  18. . ,  does  not  appear  to  have 
been  registered.  Tliis  should  be 
done;  the  reference  should  be  sup- 
plied. 

2.  The  license  to  underlet  given 
by  ....  to  .... ,  and  dated  the  .... 
day  of . . . .,  18. .,  must  be  delivered 
up  on  completion,  and  the  vendor 
must  obtain  the  requisite  license  for 
the  present  assignment. 

3.  The  assignment  dated  the. . . 
day  of  . . . . ,  18. . . . ,  and  made  be- 
tween ....  and  ....  purports  to  as- 
sign the  term  from  29th  September, 
1866,  whereas  the  original  term  is 
from  29th  September,  1863.  How  is 
this  accounted  for? 

4.  Is  the  vendor,  or  are  his  so- 
licitors, aware  of  any  charge  or 
incumbrance,  or  other  matter  af- 
fecting the  premises  sold  which  is 
not  disclosed  by  the  abstract  ? 

Andrew  Abbe, 

Solicitor  for  Purchaser. 
(Dated) 


Rejjlies. 

1.  This  lease  was  registered.  We 
can  not  give  the  reference,  but  it 
can  readily  be  ascertained  by  the 
usual  search.  See  clause  —  of  con- 
tract. 

2.  This  will  be  done. 


3.  This  is  an  error.  Tlie  term  is 
from  29th  September.  180:3,  and  the 
assignment  referred  to  in  the  requi- 
sition is  of  the  residue  of  the  term. 


4.  No.  It  is  presumed  that  the 
purchaser  will  make  the  usual 
seai'ches. 


Charles  &  Daravin, 

Solicitors  for  the  Vendor. 
(Dated) 


It  will  be  observed,  the  example  just  given  is  of  requisi- 
tions and  replies  upon  a  leasehold  title. 

§  8.  Answers  to  Requisitions.  "  A  purchaser  is  en- 
titled," observes  an  English  writer,'  "  to  be  furnished  with 
evidence  of  facts  material  to  the  title,  whether  such  facts 
are  to  be  used  as  positive  or  negative  proof.s,  and  the  vendor 
is  bound  to  answer,  to  the  best  of  his  knowledge,  any  rele- 
vant question  upon  the  subject  of  the  title,  and  to  furnish 
such  evidence  as  may  be  in  his  power ;  but  the  ])urchaser 
must  confine  his  questions  to  some  particular  defect,  and 


'  Seaborne  Vend.  &  P.  175. 


OriNIOXS    OF    TITLE.  023 

not  call  for  a  general  explanation  of  matters  whicli  he  may 
consider  require  to  be  explained."  '  The  foregoing  remarks, 
though  nnule  in  relation  to  the  English  laws  on  the  subject 
of  sales  of  real  property,  are  not  Avithout  some  force  in  the 
United  States,  but,  as  a  rule,  and  unless  the  agreement  for 
sale  otherwise  provides,  the  purchaser  is  entitled  to  a  full 
disclosure  of  everything  in  any  way  material,  and  the  evi- 
dence should,  so  far  as  practicable,  enable  tlie  ])urchaser  to 
deduce  a  good  title  of  record.  Where  affidavits,  or  other 
instruments  are  furnished  in  answer  to  re(|uisitioiis.  such 
instruments  should  be  recorded,  if  accepted,  as  they  then 
constitute  a  part  of  the  muniments  of  title.'  Statements 
not  under  oath  or  attested  by  any  solemnities  are  too  unsat- 
isfactory, even  though  reduced  to  writing,  tliough  sometimes 
from  necessity,  or  under  a  choice  of  difficulties,  letters  are 
admissible  to  sujiply  information  or  furnish  data  for  missing 
facts.  Certificates,  particularly  when  made  in  tlie  line  of 
official  duty,  may  be  received,  and  for  many  purposes  they 
would  be  prima  facie  evidence  of  the  facts  recited. 

§  9.  Allidavits  of  Pedigree.  Frequent  allusion  has 
been  made  in  this  work  to  titles  asserted  by  descent,  in  which 
no  probate  or  other  court  proceedings  have  been  had,  and 
the  unsubstantial  and  unsatisfactory  nature  of  such  titles 
have  been  duly  considered.  As  before  remarked  it  is  cus- 
tomary for  counsel  to  call  for  additional  evidence  in  siicii 
cases  as  to  the  right  of  the  party  asserting  such  title  to  make 
a  deed,  and  this  is  usually  su])plied,  in  the  absence  of  better 

■Greoni".  PiilKf()r(l,2Beav.  (Eng.)  aftor  all  inqiiiric'S  have  l«vn  Miadf 
70;  Pearse  I'.  Pearwe,  1  DeG.  &  S.  and  rtHiuisitiinis  .suiiplitHl,  tlio  mat- 
(En^.)  12.  Tliese  matters  are  usu-  tcr  thus  ()l)taiiii'<l,  or  such  |K)rti(iiis 
ally  arranged  biforehand  by  what  as  are  BUHci'i»tilile.  sluiuld  l>e  re- 
is  calleil  tlie  "  Ojnditions  of  Sale,"  corded,  and  a. HUppU-iiicntalalistract 
an  inntrument  n;«enibling  what  ia  of  Haine  niaile  and  !ii«|Mndrd  to  tin- 
known  in  thin  country  as  a  "  Con-  orij^inal.  ThiH  woulti  make,  »<>  far 
tract  for  Sale,"  (not  "  Agreement  a«  may  l>e,a  jK-rfect^Hl  and  eohen-nt 
t<)  iJccd  ■')  but  mtifh  njore  cireum-  title,  and  is  preferable  to  an  npinion 
Btantial  Jind  explicit.  Blunving    all    the    deftn-tH.    which 

*Aji  HUggebted,  iii  another  place,  nm.sl  be  niiutlied  aflcrwuivl. 


G2-i  ABSTRACTS    OF    TITLE, 

testiinoiu',  by  c.v  parte  ailidavits  of  pedigree.  Facts  in- 
volved in  a  question  of  ])edigree  should,  ^vllenever  practi- 
cable, be  stated  upon  the  personal  knowledge  of  the  affiant, 
but  may  be  established  by  proof  of  general  reputation  in 
the  family,  or  even  by  proof  of  what  deceased  nicmbeis  of 
the  family  may  have  said.'  From  the  necessity  of  the  case, 
hearsay  evidence  of  certain  kinds  is  admissible  in  estal)lish- 
ing  matters  of  this  character,  because  it  is  the  best  of  which 
the  nature  of  the  case  admits,"  l)ut  such  evidence  is  restricted 
to  the  declarations  of  deceased  persons  who  were  related  by 
blood  or  marriage  to  the  person  from  whom  the  descent  is 
deduced.' 

§  10,  Analysis  of  Title.  Every  person  who  has  ever 
attempted  to  criticall}"  examine  an  abstract  consisting  of 
twenty  removes,  or  more,  must  have  experienced  some  diffi- 
culty in  endeavoring,  while  grappling  Avitli  a  present  ques- 
tion, to  still  keep  in  view  the  past  course  of  title,  or  to  apply 
it  toward  the  solution  of  the  question  under  consideration. 
A  mastermind  possibly  might  beable  to  successfully  encom- 
pass the  matter  and  from  chaos  bring  order  with  no  external 
aids,  but  to  the  average  lawyer  some  assistance  is  frequently 
indispensable,  and  this  may  be  obtained  by  making,  what 
may  be  called  an  analysis  of  the  title,  as  he  proceeds  in  its 
perusal.  This  is  accomplished  by  a  chain,  on  which  is  noted 
the  condition  of  the  ownership  of  the  land  after  every  con- 
veyance, and  is  a  sort  of  balance  sheet  which  shows  the  state 
of  the  title  at  every  stage.  For  tracing  minute,  varied,  or 
numerous  ownerships,  it  can  not  well  be  dispensed  with,  and 
its  use  can  frequentlv  be  advantageously  sup])lemented  by 
sketch  maps  of  the  land  itself.  It  is  believed  that  no  better 
plan  exists  for  preserving  at  every  stage  of  the  title  the  true 
interests  of  the  parties,  than  by  reducing  them,  at  every  step, 
to  a  common  denominator.  Should  any  of  the  parties  in 
interest  by  inadvertence,  mistake  or  design,  convey  more 

'  Harland  v.  Eastman,  107  111.  535.  '  Blackburn  v.  Crawford's  Lessee, 

'Harlandu.  Eastman,  107111.535;  Wall.     (U,  S.)   175;     Harland    v. 

BlafkVjum  r.  Crawford's  Lessee,  3  Eastman,  107111.  535;  1  Greenl.  Evi- 

Wall,  (U.  S.)  175.  dence,  §  103;  1  Tayl.  Ev,  g  576. 


OPINIONS    OF    TITLE.  625 

than  his  or  her  respective  share,  or  intending  to  convey  all. 
should  convey  less,  the  error,  mistake  or  fraud  is  instantly 
detected,  and  the  confusion  Avhich  necessarily  must  prevail 
in  subsequent  conveyances,  will  not  serve  in  the  sligutest  to 
distract  the  attention  of  counsel  or  set  him  trying  to  recon- 
cile the  irreconcilable  by  making  six  go  into  four.  As  an 
illustration,  take  the  case  of  a  manufacturing  site  in  a  citv. 
In  the  course  of  business,  man}-  partners  come  and  go.  Some 
own  large  interests,  some  small.  They  trade  among  them- 
selves and  purchase  interests  from  each  other.  All  the 
interests  are  undivided.  The  purchasers  buy  interests  in  the 
business,  but  incidentally  they  purchase  corresponding  inter- 
ests in  the  real  estate  as  well.  It  will  take  but  a  short  time  to 
thoroughly  complicate  such  a  title,  as  a  demonstration  will 
show.  Suppose  the  abstract  revealed  substantially  the  fol- 
lowing facts : 

Xos.  1  to  5  show  a  conveyance  from  the  government,  ami 
a  regular  investure  of  title  with  unbroken  chain  to  A.  B. 
iSO.    6.     A  subdivision  by  A.  B.     (Now  trace  one  lot.) 

A.  B.  to  C,  D.,  undivided  one  half. 

C.  D.  to  E.  F.,  undivided  one  fourth. 

E.  F.  to  G.  II.,  undivided  one  eighth. 

A.  B.  to  G.  H.,  undivided  one  half. 

C.  D.,  E.  F.  and  G.  II.,  a  mortgage  to  O. 

C.  D.  to  E.  F.,  undivided  one  half  of  one  lialf. 

C.  D.  to  I.  K.,  undivided  one  Ii;ilf  of  one  half. 
I.  K.,  the   last  grantee,  now    desires    to    have    his    title 
examined  with  the  result  shown  in  the  following  analysis. 
This  analysis  takes  no  note  of  errors,  l)ut  is  sim[)ly  to  sepa- 
rate and  keep  distinct  the  various  (ownerships: 

ANALVS/S    OF    7/77./'; 

to 

Lot  0,  niorl-  i^'i,   Oi'hjlnal  Plat  of  the    City  of  Kuioaha, 

IfV/f,.  cw  fthoirn  hij  the  annexed  ahstnu't.     The  numbers  corr&- 

sjjond  to  the  nnmhcrH  of  the  rrmoves  as  tihotcn  in  the  ahstnicl. 

40 


No. 

7. 

No. 

8. 

Xo. 

9. 

No. 

10. 

No. 

11. 

No. 

12. 

No. 

13. 

G26  ABSTRACTS   OF    TIT  I.E. 

The  ownership  of  said  lot,  after  each  of  the  conveyances 
mentioned  in  said  abstract,  was  suhstantiaUy  as  follows: 

1     Numbers  1  to  5  show  regidar  investwe  of  title  in  A.  B. 
to  No.  6  a  subdivision  by  him.  Lot  6  being  shown  on 

6  the  plat  of  such  subdivision. 


7 

A.D.,}! 
C.  D,i 

1 

All. 

Sept.  1,  1S5S. 

8 

1 

All. 

Dec.  13,  1853. 

9 

A.B.,  J  =  | 

• 

C.  D.,  i  =  1 

G. //.,!  =  * 

J 

All. 

Feb.  14,  1859. 

10 

C.  D.,  i=" 
E.F.,^^ 
G.H.,  iund  i- 

f 

! 

All. 

Mag  10,  1859. 

11 

Mortgage, 

12 

E.  F.,\  and  J 
G.  II.,  t  = 

' 

All. 

Si 

ihj.  to 

mortgage 

Aug.  27,  1859. 

13 

E.F.,^==i 
G.  II.,  1  =  1 

I 

All  and  \ 
No  title 

excess, 
in  I.  K. 

Jan.  9,  1860. 

The  foregoing  illustration  is  necessarily  brief  and  simple. 
In  practice,  much  more  difficult  problems  arc  presented,  as 
where  the  abstract  consists  of  from  forty  to  fifty  removes, 
each  one  of  fractional  interests,  and  not  in  the  easily  under- 
stood parts  shown  in  the  example,  but  of  ninths,  fifteenths, 
etc.,  until  the  chain  presents  one  bewildering  maze  of  diverse 
fractional  interests.  In  no  other  way  known  to  the  writer 
can  these  unevenly  balanced  interests  be  harmonized  and 
presented  in  tangible  shape  than  by  the  method  of  reduction 
above  indicated.  Counsel  can  then  see  at  a  glance  the  actual 
interest  of  every  owner  at  every  stage  of  the  title.  He  can 
tell  if  any  have  conveyed  more  than  they  possessed,  as  Avell 
as  whether  any  interests  yet  remain  in  parties  who,  suppos- 
ing they  had  divested  themselves  of  all  title,  no  longer  claim 
ownership;  and  the  further  fact,  in  wliom  the  ])resent  title  of  • 
the  premises  rests,  and  the  extent  of  the  ownership  of  each. 


OnXTONS   OF   TITLE. 


Thus,  in  tlie  example,  I.  K.  took  nothing  bv  his  deed,  vet 
sii})posing  that  he  had  in  time  ]nirchased  otlier  interests,  and 
bought  and  sold  from  and  to  others  of  the  present  parties,  as 
^vell  as  neAV  parties  who  snlisequently  came  in,  this  surplus 
one  fourth,  or,  as  it  might  be  in  actual  experience,  one 
sixteenth,  or  even  a  smaller  interest,  or  a  fractional  ]iart  of 
a  fractional  part,  would  have  become  strangely  blended  with 
the  legitimate  interest.  However  correct  tlie  opinions  of 
Mr.  Sugden  in  respect  to  note  taking  on  the  perusal  of  En- 
glish abstracts,  it  must  be  ajiparent  they  can  not  be  well  dis- 
])ensed  with  under  the  American  system,  and  of  all  the 
devices  to  trace  title,  none  can  compare  in  simplicity  and 
thoroughness  with  the  simple  ''analysis"  which  has  been 
presented.' 

§  11.  Analytical  Cliaiiis.  Even  when  the  title  is  not 
complicated  by  a  multiplicit}^  of  small  ownerships,  if  it  be 
long  drawn  out,  that  is,  extending  over  a  long  ])eriod  of 
years  and  passing  through  many  hands,  some  kind  of  chain 
is  generally  of  material  assistance  in  keeping  the  course  of 
title  prominently  before  the  examiner,  and  prevents  frecjuent 
recurrence  to  parts  of  the  abstract  that  have  alreadv  been 


'  ^Ir.  Greenwood,  an  English 
writer  on  conveyancing,  says  he 
"  has  found  it  a  convenient  course 
in  perusing  an  al>stract  to  take  a 
sheet  of  paper  with  a  double  margin 
and  insert  the  date  of  the  deed  in 
the  left  hand  margin,  and  on  the 
opp(->site  side  jmt  such  part  of  tlie 
de»'<l  nn  is  n;<;es.sary  to  sIkjw  the  dev- 
olution of  the  title  and  any  Hper.'ial 
c!aus«'S  or  Ktij>ulatii>n.s,  leaving  the 
right  hand  margin  for  notes  and 
queries.  It  may  sometimes  l>e 
convenient  to  keep  tlie  devolution 
of  the  legal  and  efjuitahle  CHtates 
BPparatf.  This  will  di*|«'nd  on  the 
title;  hut  it  in  alwavH  lln'  l»e«t  courso 
in  perusing  an  al»Htract  U)  show 
the  devolution  of  the  title  to  any 
attendant  l«Tni   of  years  on  u  sep- 


arate sheet  of  paper.  All  this  may 
be  done  very  briefly;  it  is  only 
necessai-y  to  make  a  note  in  the 
margin  opposite  any  partienli.r 
clause  or  matter,  in  onU-r  that  at- 
tention may  be  readily  calle«l  to  it 
afU-rward,  jia  perliai»s  the  next  or 
a  subsi'^juent  det'd  may  have  tin- 
elTi'Ct  of  disposing  of  the  jxiint;  an  I 
should  this  be  ho,  it  is  a  good  plan 
to  insert  a  note  in  themargitiof  tin- 
analysis  untlcr  tin*  difeet  pr<'\  i- 
ouHly  note<l,  and  ihiw  many  of  tlu- 
]>ointA4  it  hns  hern  found  necrKsary 
to  raise  will  be  disiNMiHl  of,  and 
th<»He  not  eh-ared  up  will  form 
themaU-rial  for  r<'<|uiHitioUH  on  llic 
title."  (iriH'iiwood'b  Conveyuncing 
(Cth  Kil.),  40. 


G28  ABSTRACTS    OF   TITLE. 

passed  over.  This  can  be  fairly  accomplished  by  an  analytic, 
or  in  one  sense  synthetic,  chain,  showing  all  the  conveyances 
and  their  connection  with  each  other.  Whenever  an  adverse 
title  intrudes,  this  chain  will  be  a  great  hcl])  both  in  keeping 
the  titles  separate  and  showing  their  general  course,  and,  if 
that  event  occurs,  their  ultimate  union.  This  chain  may  be 
prepared  and  used  in  connection  with  the  analysis  of  title 
described  in  the  last  section,  or  it  may  be  compiled  on  a 
separate  sheet,  and  each  used  to  supplement  the  other.  The 
chain  may  be  constructed  in  any  manner  that  will  best  serve 
to  accomplish  the  desired  purpose,  but  a  ver}'  simple  method 
is  to  make  a  geometrical  diagram,  the  instruments  being 
represented  by  quadrangles,  and  the  connections  and  course 
of  title  by  straight  lines.  This  method  has  the  merit  of  sim- 
plicity, and  presents  the  general  course  of  title  in  a  very 
clear  and  concise  manner.  The  quadrangles  bear  numbers 
with  reference  to  the  abstract,  and  may  be  further  distin- 
guished by  the  names  or  initials  of  the  parties  and  the  dates 
of  transfer.  A  chain  presenting  few  difficulties  might  be 
made  somewhat  after  the  following  example  : 


OPIXIOXS    OF    TITLE. 


620 


ANALYSIS  OF  TITLE 

to 
Section  10,  T.  1  N.,  R.  23,  E. 


ORionrAL  Title. 


Tax  Titlk, 


1 
V.S.toA. 


2 

AtoB. 


3 

B  to   C. 


i 

7 

Cto  D. 

DtoE  Und  14. 

5 

DtoG  Cn/J  14. 

8 

Eto  t  Ind  l.j. 

6-9 

OtoII  Und  U. 
Ft.  II     ■       •• 


11 

stale  to  I. 

12 

1  to  J. 

13 

Jt 

oK. 

1 

4 

A'  Co  L. 

10     15 

;/  V,  .St- 1,  t'l  ii 


16 

H  In  .V 


030  AUSTUAUTS    OF    TITLE. 

§  12.     Skotcli  Maps.     The  great  aid  derived  from  sketch 
maps  has  several  times  been  alhided  to  iluriiig  the  progress 
of  tliis  work,  and  in  all  cases  of  "  snarls  "  in  the  description 
of  land,  as  well  as  in  keeping  counsel  ])()Sted  on  the  relative 
dimensions   of   the   property   conveyed  at   each  successive 
remove,  they  are  invaluable.     Their  aid  is  more  frequently 
invoked  in   abstracts  of  what  are  ])opularly  termetl  *'  agri- 
cultural lands,"   or  lands  which  are  still  referred  to  by  the 
descriptions  furnished  by  the  government  surveys,  but  they 
will  be  found  equally  useful  in  tracing  title  to  all  land  sold 
by  metes  and  bounds,  and  which  has  never  been  the  subject 
of"  formal  subdivision.     To  successfully  employ  these  ma]:)s, 
it  is  necessary  that  counsel  possess  a  little  knowledge  of  sur- 
veving  and  understand  the  use  of  a  protractor  and  a  few  other 
siinple  instruments.'     A  tracing  of  the  government  survey 
will  be  found  very  convenient  in  all  examinations,  and  if 
counsel  is  unable  to  procure  such  he  should  request  the  exam- 
iner to  furnish  a  sketch  of  same  in  connection  with  the  ab- 
stract.   In  like  manner,  should  he  feel  inadequate  to  the  task 
of  preparing  the  sketches  of  the  property,  arrangements  should 
be  made  with  the  examiner  to  furnish  same.     In  no  case 
should  he  dispense  with  their  services  unless  he  thoroughly 
understands  the  condition  of  the  property  both  topographic- 
ally and  with  reference  to  its  superiicial  measurements,  and  in 
every  case  where  it  can  be  done,  the  sketches  should  be  made 
by  himself  rather  than  by  an  assistant,  as  the  work  of  figur- 
ing out  the  dimensions,  tracing  the  courses,  and  locating  the 
monuments  is  of  incalculable  value  in  arriving  at  a  proper 
conclusion  and  a  thorough  understanding  of  the  "lay  of  the 
land."     The  maps  or  sketches  should  be  preserved  with  the 
analysis  and  other  memoranda,  or  turned  over  to  the  client 
in  connection  therewith  if  such  should  be  the  understanding. 
In  case  they  are  given  to  the  client,  the  particular  tracts 

'  Mr.  Curwen  recommends  only  convenient,  on  accomit  of  the  accu- 

a  semi-circular  protractor,  a  pair  of  racy  with  which,  by  means  of  it, 

dividers,  and  a  scale  of  equal  parts.  links,  being  the  hundredth  parts  of 

A  scale  divided  into  fiftieth  parts  a  chain,  can  be  measui-ed.     See 

of  an  inch  he  recommends  as  most  Cm-wen  on  Absts.  21. 


OPINIONS    OF   TITLE.  GOl 

under  consideration  should  be  colored  or  shaded,  to  distin- 
guish theiu  from  other  parts  of  the  map,  and  the  dimensions, 
whenever  practicable,  marked  on  the  lines  or  courses. 

§  13.  Preservation  of  Memoranda.  "  It  is  desirable." 
says  Mr.  Lee,*  "  that  the  purchaser,  if  his  contract  is  com- 
pleted, should  carefully  preserve  not  only  the  abstract  itself, 
but  all  queries  and  objections,  with  the  answers  or  state- 
ments made  respecting  the  title,  as,  after  a  lajise  of  time, 
these  observations  and  answers  may  of  themselves  be  of 
some  weight  in  determining  future  questions."  The  reader 
will  understand,  however,  that  answers  and  statements  made 
in  response  to  queriesand  objections,  play  a  far  more  impor- 
tant part  in  the  acceptance  of  English  titles  than  they  p(is- 
sibly  could  in  the  matter  of  American  titles.  The  state- 
ments are  signed  by  solicitors  or  parties  making  them,  and 
are  regarded  for  certain  purposes  as  a  part  of  the  abstract  to 
which  they  are  usuall}'  annexed.  The  only  memoranda  that 
would  be  of  material  value  to  the  purchaser  would  consist 
of  the  analysis  of  the  al)stract,  or  of  the  title,  and  these, 
when  properly  and  carefully  made,  Avould  undoubtedly  Ite  a 
desirable  acquisition  and  well  worthy  of  preservation.  They 
would  not  only  be  of  great  assistance  to  the  purchaser  by 
enabling  hira  to  peruse  the  abstract  intelligibly  at  his  leisure, 
but  would  also  tend  to  materially  reduce  the  exi)ense  of 
subsequent  examinations.  But  being  the  private  memoi-anda 
of  counsel,  he  would,  of  course,  be  under  no  obligation  to 
deliver  them  to  the  client,  however  valuable  they  might  bo, 
as  his  opinion  is  all  tliat  is  asked  and  ])resumably  all  that  is 
paid  for;  the  methods  b}^  which  he  arrived  at  such  opijiion, 
or  the  instrumentalities  employed,  are  his  own  properly  to 
be  given  or  withheld  as  he  may  see  lit. 

§  14.  Passing  the  Title.  In  examining  a  title,  counsel 
is  frequently  compelled  to  admit  evidence  wiiicli,iilthough  it 
may  be  satisfactory  as  a  proof  of  the  fact,  yet  would  not  be 
rec(;ived  in  acourt  of  justice;  for  example,  afli<lavitsasto  facts 
disclosed  inferentially,  and  to  i)r()ve  deaths,  marriages,  etc. 
Such  alliflavits,  though  inadmissible  under  the  rules  of  evi- 

'  Loc  on  Ah.  of  Tit.  •  3. 


C32  ABSTRACTS    OF    TITLE, 

dcnce,  are  valuable  from  the  reason  that  tliey  show  that  liv- 
in^^  persons  can  at  the  time  establish  the  facts  therein  recited. 
On  the  other  hand,  in  receiving  evidence  admissible  at  law, 
counsel  is  compelled  to  submit  the  latter  to  a  severer  test 
t)ian  it  would  be  subject  to  ujion  an  ordinary  trial,  for  it  is 
not  a  contest  between  two  litigants  which  has  the  better 
title,  but  a  calm  consideration  by  a  man  in  his  chaml)ers, 
whether  the  seller's  title  is  a  safe  one  against  all  the  world.' 
§  15.  >Vhat  Constitutes  a  Valid  Title.  In  the  absence 
of  any  stipulations  to  the  contrary  the  vendor,  in  every  con- 
tract of  sale,  impliedly  undertakes  to  furnish  to  the  purchaser 
a  marketable  title.'  It  is  for  the  purpose  of  determining 
this  quality  in  regard  to  the  proffered  title  that  counsel  is 
asked  to  investigate  it  prior  to  the  consummation  of  the  sale. 
"  I  am  of  the  opinion  that  John  Smith  possessed  a  good 
and  valid  title,"  etc.,  is  a  familiar  expression  in  attorney's 
certificates  of  opinion,  and  they  are  the  controlling  words 
that  induce  the  purchaser  to  accept  the  vendor's  deed. 
Therefore  the  inquiry,  what  is  a  "  good  and  valid  "  title  is 
pertinent  in  this  connection.  It  may  be  briefly  stated  in 
answer,  that  the  title  disclosed  should  extend  to  show  a  full  and 

'  2  Sugd.  V.  &  P.  16.  monly  so    called,    should    requii'e 

'  The  remarks  of  an  eminent  En-  the  strictest  evidence  of  title,  be- 

glish  %vi-iter  upon  this  subject  may  cause  all  his  interest  depends  upon 

not  be  uninteresting.    Mr.  Lee  says:  his  power  of  making  out  a  strict 

"  Under  the  term  purchaser,  the  title  on  a  future   sale;    and    that 

law  generally  in^ludas,   a    morfc-  a    mortgagee,    seldom    advancing 

gagee,  and  also  a  lessee,  to  the  ex-  money  to  the    full  value   of    the 

tent  of  their  respective  interests;  to  estate,  may  well  dispense  with  the 

that  extent  they  are  purchasers;  most  complete  evidence  of  title,  as 

but  the  rules  of  law  and  the  evi-  an  imperfect  title  might  probably 

dence  of  title,  as  they  relate  to  a  fetch  the  amount  of  his  advances, 

lessee,  are  very  different  from  the  Others  say  that,  as  a  mortgagee 

rules  and  the  evidence  relating  to  a  can  never  gain  anything  bej^ond 

purchaser  in  the  common  accepta-  the  amount  of  the  monej'  lent,  he 

tion  of  the  term,  as  likewise  to  a  ought  to  i-un  no  risk  of  losing  that, 

mortgagee;  but  the  title  and  evi-  not  even  the  slightest;  that  a  pur- 

dence  usually  required  on  behalf  of  chaser  takes  the  estate  for  better 

a  purchaser  and  a  mortgagee  are  and  for  worse,  and  therefore,  rather 

nearly  similar.     Some  books  indeed  than  reject  a  title  for  want  of  sufii- 

have  stated  that  a  purchaser,  com-  ^ient  evidence,  he  may  be  sometim  is 


OPINIONS   OF   TITLE.  C33 

p9rfec;t  right  of  proparty  and  present  possession  vested  in  the 
vendor.'  It  must  also  embrace  the  entire  estate  or  interest 
sold,*  and  that  free  from  the  lien  of  all  bunlens,  cliarges  or 
incumbrances,'  and  should  not  only  be  free  from  litigation/ 
but  from  palpable  defects'  and  grave  doubts.'  It  should  con- 
sist of  both  the  legal  and  the  equitable  titles,'  and  be  fairlv 
deducible  of  record.*  It  may  still  be  a  valid  title,  even 
though  charged  with  incumbrances,"  but  in  that  event  the 
opinion  should  discriminate  and  the  title,  if  otherwise  unim- 
paired, must  be  certified  as  "  subject  to  the  lien,"  etc.,  of  the 
incumbrance.  The  terms  of  the  contract  of  sale  will,  in 
many  instances,  determine  the  question  of  title  when  raised, 
but  ordinarily,  while  a  purchaser  will  not  be  compelled  to 
accept  a  title  palpably  defective,  he  can  not  justify  his  refusal 
to  accept  by  mere  captious  objections,  nor  is  it  sullicient  for 
liim.  when  the  jurisdiction  of  a  court  is  invoked,  to  com})eI 
him  to  perfomi  his  contract,  merely  to  raise  a  doubt.  A  de- 
fect in  a  record  title,  will,  under  most  circumstances,  furnish 
a  defense  to  a  purchaser,  particularly  where  it  affects  the  value 
of  tlie  property  or  Avould  interfere  Avitli  its  sale,  and  tiius 
render  it  unmarketable;'"  but  there  is  no  inlle.\ible  rule,  in  tlio 
absence  of  stipulations  to  the  contrary,  that  a  vendor  must 
furnish  a  perfect  title  of  record,  and  it  has  frequently  l)cen 
held  that  defects  in  the  record  or  paper  title  nuiy  be  removed 
by  parol  evidence."  Where,  however,  the  title  depends  upon 
a  matter  of  fact  which  is  not  ca])a1)le  of  satisfactory  ju-oof, 
or,  if  ca])able  of  that  ])roof,  yet  is  not  so  ])roved,  the  title  is 
not  marketable  and  the  purchaser  is  not  obliged  to  take  it. 

alviwed  totake  it,  and  speculate  for  *  Sniitli  r.  RdltcrtHon.  2H  -Ma.  ni2; 

a  rise  in  value."    Lee  on  Ab.  (Eng.)  Holland  c.  Holiucs,  11  I"la.  'MM. 

•  ly.  'dans  V.  lit  iisliaw,  '2  IJarr  (Ta.). 

'  D.'k'vanr.  Duncan,  ION.  ¥.48');  at;    Scott  r.  Si mi] (son,    11    Ili-ihk. 

Daviri  V.  Hi-nd.-rwjn,  17  Wis.  lOr,.  (Tiiin.)  :no. 

*Taft  V.  KeJwel,  16  Wis.  27:j.  ''Taft  v.  K.-ss.-l.  in  Wis.  273. 

'  lii)\H;rUi  V.  Hajisett,  lOr)  Ma.ss.  407;  *  Martin  i-.  Ju<ld,  M  111.  4HS. 

Jones  V.  Gardner,  10  Jolitw.    200;  'Caal  f.  lliKniiin. -•'N- J- I''<l' '^f**^- 

D.iviflwn  f.  Van  Pelt.  1")  Wis.  :M1.  '"Slirivcr  r.  Sluiv.r.HO  N.  Y.  ft7(». 

*  S|M'aknuin  r.  Forei«iugli,  41  I'a.  "  llellreigel  r.  .Mjuming,  87  N.  Y. 

St.  .'303.  M. 


631  ABSTRACTS    OF    TITLE. 

A  title,  to  be  valid,  need  not  necessarily  be  deducible  of  rec- 
ord, for  a  prescrijitive  title  may,  under  proper  conditions, 
be  as  strong  as  a  title  by  grant;'  yet  such  titles  are  always, 
unless  there  has  been  a  continuous  holding  for  at  least  thirty 
years,  liable  to  defeat  from  undisclosed  defects  and  assertions 
and  claims  by  heirs,  or  persons  under  disability. 

Again,  a  valid  title  should,  as  is  self-evident,  be  free  from 
latent  defects  or  taint  of  fraud;  yet  this  is  something  that 
from  its  very  nature,  must  frequently  pass  undetected,  even 
by  the  exercise  of  the  greatest  prudence.  As  a  rule,  how- 
ever, where  the  legal  title  is  vested  in  the  vendor,  and  there 
is  nothing  apj^earing  from  which  purchasers  can  know  that 
tliere  has  been  any  fraud  in  his  acquisition  of  the  title,  or  any 
invalidity  in  any  deeds  in  his  chain  of  title,  they  will  be  pro- 
tected in  the  purchase." 

§  16.  Flaws.  This  term  may  be  apth^  used  to  describe  an 
apparent  gap  or  break  in  the  chain,  which,  when  occurring, 
constitutes  in  many  cases  an  insurmountable  impediment.  A 
requisition  must  in  all  cases  be  made  for  the  missing  links, 
whether  the  interruption  be  partial,  as  wliere  one  of  several 
shown  to  possess  a  unit}^  of  interest  fails  to  convey,  or  entire, 
as  where  no  privity  of  title  is  shown  to  exist  between  present 
and  past  owners.  Where  the  original  title  fails,  and  requisi- 
tions for  the  purpose  of  showing  connection  are  returned  un- 
satisfied, the  title  asserted  becomes  adverse  to  the  original 
title  and  necessary  inquiries  in  J;a^*must  be  made  to  show 
a  valid  title  by  adverse  possession.  An  apparent  break  in  the 
chain  often  occurs  in  case  of  descents,  the  estate  of  the  intes- 
tate never  having  been  settled  in  probate ;  and  when  the  only 
heirs  are  married  women,  and  a  conveyance  is  subsequently 
made  by  them,  if  no  description  of  the  person  or  ca])acity  is 
given,  the  break,  upon  the  record,  will,  of  course,  be  absolute. 
When  a  grantee  under  an  unrecorded  land  contract  has  gone 
into  possession,  but  no  deed  has  ever  been  made,  the  same  state 
of  facts  exists  in  respect  to  conveyances  by  him.  Again,  and 
this  case  is  by  no  means  uncommon,  simple  or  ignorant  i)eople 

»  McNab  V.  Young,  81  111.  11.  *  Serman  v.  Kane.  86  N.  Y.  57. 


OriXlOXS   OF  TITLE.  C3j 

frequently  go  into  possession  under  deeds  whicli  tlicv  never 
cause  to  be  recorded,  which  apparently  breaks  the  continuity 
of  interest  and  title.  Eequisitions,  in  a  majority  of  instances, 
will  suffice  to  discover  the  missinii:  evidence,  but  when  thev 
can  not  be  found,  possession  and  claim  of  title  under  the 
statute  of  limitations  must  be  relied  on. 

A  serious  defect  of  the  character  under  consideration  will 
frequently  be  foand  at  the  very  initiation  of  the  title,  tlio 
abstract  showing  only  the  original  entry  at  the  government 
land  office,  supplemented,  possibl}',  by  the  local  record  of 
the  receiver's  duplicate  receipt.  Kow  it  is  immaterial  how 
long  the  premises  may  have  remained  in  ])rivate  occupancy 
nor  through  how  many  hands  they  may  have  passed;  the 
title,  in  such  a  case,  is  simply  an  equity,  for  no  limitation  runs 
against  the  government.  Yet  such  defects  are  very  com- 
mon. From  a  very  early  day  in  the  history  of  the  ]>ublic 
laud  system,  settlers  and  purchasers  seem  to  have  been 
strangely  indilTerent  in  the  matter  of  securing  possession  of 
the  government  patents  for  their  lands,  and  in  hundreds  of 
thousands  of  instances  the  foundation  of  title,  as  exhibited 
by  local  records,  to  lands  purchased  from  the  government, 
some  of  them  of  vast  present  value,  is  merely  the  duplicate 
receipt  above  alluded  to.  Probably  this  indillVrence  has 
arisen  chiefly  from  ignorance  on  the  part  of  ]Hirchasers  that 
a  patent  constitutes  the  only  positive  evidence  of  the  trans- 
fer of  title  from  the  government  to  the  individual,  but  what- 
ever may  be  the  cause,  the  fact  exists,'  and  it  shouUl  i)ii  the 
duty  of  every  attorney  examining  a  title  to  see  that  this 
viLal  link,  showing  the  original  derivation,  is  restoreil  when- 
ever it  is  shown  to  be  wanting.' 

'It  would  pr-om  th.it  tlu-n'  ari!  an;i.  Illinois,  etc.     See  Rfpjrt Con- 

now  reinaijiing  in  tlio  lilcs  of  the  t-ral  Imu\  OJHco  187.'5. 

j^t-ncral     and     local     land    rjfllocH  'Tin-    initial    statt-nii-ntfl     laktu 

n»arly   two   millidiis    of  uiualk'd-  from  thi>  (Jovcriiim-nt  Tract  lioolt 

for  i)at4'nt.s.  coviTin;^,  piolialily.not  will   ahvay-t   furnish   n  c'tio    to  »i 

less  tlian  l')0,(K)0,(K>(»acrcrt,  no  small  break  of  thi.^  kind,  and  ac.rlili.'d 

projKirtion  of  whicli  Iwinj^    landrt  co;iy  of  tli«  patent  can  Im- ol.tari  d 

purcIijuMul  of  the  government  more  by  any  pernon  Hliowing  him.'K'If  lo 

tlian  half  a  century  apt.  and  lyin^  Ijl-  enlilled  to  it. 
iu  tl.c  o'.dcT  States  of  Ohio,   Indi- 


03G  ABSTRACTS    OF    TITLE. 

§  17.  Cloufls  upon  Titl(».  In  the  examination  of  ab- 
stracts counsel  frequently  linds  minor  defects,  invalid  instru- 
ments, and  abortive  attempts  at  conveyance,  which,  while 
not  reaching  the  merits  of  the  title,  nor  yet,  in  many  cases, 
casting  any  suspicion  upon  it,  still  tend  in  a  measure  to  ob- 
scure it.  These  defects  are  known  as  "  clouds  upon  the  title," 
and  it  is  the  duty  of  counsel  to  detect  and  point  out  such 
defects  that  proper  steps  may  be  taken  to  eradicate  them. 
The  opinion  should  properly  discriminate  between  deeds 
which  are  defective  merely,  or  which  might  be  made  the 
foundation  of  a  valid  title  in  connection  with  other  circum- 
stances, and  those  which  are  absolutely  void,  for  the  legal 
effect  of  the  two  classes  is  not  the  same.  As  a  general  rule, 
a  deed,  lien,  charge  or  incumbrance  of  any  kind,  to  cast  a 
shadow  upon  title,  so  as  to  give  the  owner  relief  in  equity,  must 
be  one  that  is  regular  and  valid  upon  its  face,  but  is  in  fact,  ir- 
regular and  void  from  circumstances  which  have  to  be  proved 
b}''  extrinsic  evidence.'  If  the  invalidity  plainly  appears  on  the 
face  of  the  instrument,"  or,  although  not  apparent  on  the  writ- 
ing, if  it  is  shown  by  any  of  the  preliminaries  which  attend  it, 
or  in  any  of  the  links  which  connect  it  with  the  title,'  so  that 
no  lapse  of  time  nor  change  of  circumstances  can  weaken 
the  means  of  defense,  such  an  instrument  does  not,  in  a  just 
sense,  even  cast  a  cloud  upon  the  title,  or  diminish  the  secu- 
rity of  the  owner  of  the  land,*  for  the  rule  is  well  settled  that 
such  an  instrument  can  work  no  mischief,  and  that  no 
occasion  arises  for  equitable  interference  for  its  removal  or 
cancellation.*    It  is  not  recommended,  however,  that  every 

'  Murphy  v.  Mayor,  etc.,  of  Wil-  and  upon  wliicli  the  validity  of  the 

mington,  10  Reporter,  765;  Crooke  adverse  title  depends,  are  shown  to 

V.  Antkews,  40  N,  Y.  547;  Sanxay  be  void  for  jurisdictional  defects: 

V.  Hunger,  43  Ind.  44;  Davidson  v.  Florence  v.    Paschal.   50  Ala.  28; 

Seegar,  15  Fla.  671.  Hatch  v.  City  of  Buffalo,  38  N.  Y. 

« R.  R.  Co.  V.  Schuyler,  17  N.  Y.  276. 

599.  ••  R.  R.  Co.  V.  Schuyler,  17  N.  Y. 

« Fonda  v.  Sage,    48  N.  Y.  173;  599;Bogertr.  City  of  Elizabeth,  27 

Griswold  v.  Fuller,  33  Mich.  268;  as  N.  J.  Eq.  568. 

where  title  is  deduced  through  a  '  Fonda  u.  Sage,   48  N.    Y.  173; 

judicial  sale,  where  the  proceedings  Cohen  v.  Shard,  44  Cal.  29. 
which  were  the  basis  of  such  sale, 


0PI^'I0^'s  OF  title.  C37 

matter  appearing  in  the  abstract,  and  shown  thereby  to  be  ir- 
reguU\r  and  void  upon  its  face,  be  disregarded  for  that  reason, 
for  the  legitimate  province  of  the  opinion  is  to  specilically 
show  the  legal  effect  of  all  instruments  or  proceedings  that 
to  the  non-professional  reader  may  seem  suspicious,  and,  by 
pointing  out  such  matters  and  showing  their  invalidity,  to 
allay  his  fears  and  confirm  his  confidence  in  the  title.  It  is 
for  this  very  purpose,  that  intending  purchasers  seek  the  aid 
of  counsel,  and  every  doubt  or  question  that  may  arise  to 
the  legal  mind  should  find  expression  in  the  o})inion.  Many 
questions  of  this  character,  which  formerly  could  be  very 
summarily  disposed  of,  now  require  a  very  different  treat- 
ment, from  the  fact  that  in  a  large  number  of  States  the 
statute  has  made  certain  classes  of  deeds  and  conveyances 
yrima  facie  evidence  of  the  facts  therein  recited,  and  not  only 
of  their  own  validity,  but  of  every  anterior  proceeding  nec- 
essary to  constitute  such  validity.  Whenever  a  deed  is  pri- 
mary evidence  of  title  and  of  regularity  in  the  prior  proceed- 
ings, and  can  only  be  overcome  by  proof  of  certain  facts 
dehors  the  deed,  a  cloud  is  always  created,'  for  though  the 
instrument  is  really  void,  it  has  an  ostensil)le  validity,  and 
throws  a  doubt  over  the  title,  and  not  onl}'  can  be  used  for 
vexatious  purposes,  but  is  such  a  title  that,  if  asserted  by 
action  and  put  in  evidence,  would  drive  the  other  party  to 
the  production  of  his  own  title  in  defense." 

^  IS.  Inquiries  in  Pais.  Technically,  when  an  attorney  is 
called  upon  to  i)ass  the  title  to  land  under  a  givon  state  of 
facts  as  presented  by  the  abstract,  ho  is  not  su])posed  or  jtrc- 
sumed  to  extend  his  investigations  l)eyon<l  what  is  dirct-tly  or 
inferentially  disclosed  therein.  The  absence  of  HMjiiisit*;  links 
in  the  chain  of  title  calls  for  in(juiries  respecting  same,  but  the 
existence  of  unrecorded  evidence,  or  of  ecpiities  not  a|>|»arent 
or  fairly  deducible,  do  not  k'gitimately  come  within  the  prov- 
ince of  an  examining  counsel.  It  is,  however,  strongly  ivconi- 
mended,  that  in  addition  t<t  thf  in(|uin«'s  and  r('(|iiisitions 
ma<le  during  the])erusal  of  tiie  abstract,  and  which  are  niiseil 

'TilUm  V.  R  K.   Co.,  8  Siiwyc-r  » Lick  r.  It^iy.  43  Ciil.  83. 

(C.  Ct.),  22. 


G38  ABSTRACTS    OF    TITLE. 

bv  the  disclosures  tlierein  made,  a  further  inquiry  he  directed 
to  the  present  possession  and  occupation  of  the  Uinii  under 
examination.'  A  due  observance  of  tliis  suggestion  will  give 
greater  stability  to  the  opinion,  and  may  in  many  cases  prove 
a  mild  preventive  of  a  long  and  bitter  lawsuit.  A  long  series 
of  adjudicated  cases  confirm  the  -doctrine  that  open  and 
exclusive  possession  of  land  affords  notice  of  the  claim  of 
the  person  so  in  possession,^  and  the  purchaser  of  land  at  the 
time  adversely  held  by  another  who  does  not  inquire  of  the 
part}''  in  possession  as  to  his  title,  will  not  be  considered  as  a 
hnnafide  purchaser,  notwithstanding  he  may  have  examined 
the  registry  of  titles.'  A  purchaser  of  land  Avho  examines 
the  records  is  protected  by  them  as  far  as  they  can  protect 
him,  but  he  necessarily  takes  the  risk  of  having  the  actual 
state  of  the  title  correspond  with  that  which  api)ears  of  rec- 
ord.* The  registration  laws  are  designed  only  to  protect 
purchasers  against  latent  equities;  hence,  unrecorded  convey- 
ances are  void  as  against  subsequent  purchasers  without 
notice,  and  while  in  a  few  instances  courts  may  be  found 
holding  strongly  against  the  doctrine  of  constructive  notice 
arising  from  possession  merely,*  though  admitting  such  to 
be  competent  for  the  consideration  of  a  jury,  in  connection 
with  direct  evidence  of  actual  notice,  a  vast  preponderance 
of  authority  sustains  the  principle  that  a  purchaser  froin 
the  record  owner  ia.  bound  to  notice  the  possession  of  another , 

'  The  importance  of  this  inquiry  *  Pritchard  r.  Bro\vn,  4N.  H.  397; 

can  not  be  over-estimated  in  cases  Redden  v.  Miller,  65  111.  33G;  I\Ia- 

where  a  long  inteiTal  exists  be-  ghee r.  Robinson,  98111.  45S:Piiney 

tween  the  time  of  acquiring  title  v.  Fellows,  15  Vt.  525;  Racket^  v. 

and  its  divesture  of  record.  In  some  Callender,  32  Vt.  97.    The  nile   is 

cases  sev^en  yeare,  and  in  nearly  the  same  both  at  law  and  inequity: 

every  case  twenty  years,  will  be  Griswold  v.  Smith,  10  Vt.  454. 

sufficient  to  bar  an  apparent  title  ^Pussell  v.  Sweezy,  2S  Mich.  235; 

of  record  when  adverse  rights  have  Warren  v.  Richmond,  53  111.  52. 

been  acquired;  and  continuous  pos-  ■*  Peck  v.  Clapp,  98  Pa.  St.  581. 

session  is  almost  as  essential  a  show-  *  Pomeroy  v.    Stevens,   11    Met. 

ing    as    unbroken    continuity    of  244;  Glass  v.  Hurlbut,  102  jMass.  34; 

record  title.  Clark  r.  Boswortli,  51  Me.  528. 


OPINIONS    OF   TITLE.  639 

and  takes  subject  to  the  right  indicated  by  such  possession.' 
In  any  event  the  safe  course  is  to  make  the  inquiry,  for  tlie 
law  will  not  extend  its  protection  to  those  who  through  neg- 
lio^ence  or  inattention  suffer  an  advantaire  to  be  taken  of 
their  credulity,  nor  will  it  afford  relief  to  those  who  neglect 
to  examine  an, I  by  personal  observation  ascertain  the  knowl- 
edge of  those  facts  of  which  they  are  presumably  conver- 
sant. "  It  is  not  to  be  supposed,"  says  Richardson,  C.  J., 
"  that  any  man  who  wishes  to  purchase  land  honestly,  will 
buy  it  without  knowing  what  are  the  claims  of  a  person  who 
is  in  tlie  open  possession  of  it.  It  is  reasonable,  if  men  buy 
in  such  cases  without  inquiry,  that  thay  should  be  presumed 
to  have  known  everything  which  they  might  have  learned 
upon  due  inquiry," "  "  and  one  important  evidence  of  title  to 
an  improved  estate,"  continues  Sliepley,  J., "  is  the  possession 
of  it.  When  one  person  purchases  of  another  who  is  not  in 
possession,  he  is  pat  upon  inquiry  into  th  j  cause  of  such  ap- 
parent defect  of  a  perfect  title."  '  When  land  is  vacant  or 
unoccupied,  no  presumption  can  arise  against  the  legal  titte.* 
§  19.  Coiitiuue:! — Mi'chank'.s'  Lieii.s.  It  has  been  held 
in  a  late  case,'  that  a  party  purchasing  premises  on  which 
buildings  are  in  process  of  erection,  having  knowledge  of 
the  same,  is  bound  to  make  inquiry  as  to  the  riglits  of 
parties  furnishing  materials  or  performing  work  thereon, 
and  that  such  person  is  charged  with  constructive  if  not 
actual  notice  of  tlieir  lien.  Further,  tliat  a  sale  of  projierty 
after  the  lien  is  fixed,  to  one  cognizant  of  same,  gives  him 

■  Pinney  v.  Fellows,    15  Vt.    52~y,  Thompson   v.   Burliaiis,   7!)   N.  Y, 

Russell  V.   Sweezy,  23   Mich.    23o;  93. 

Re<Men  v.  MillcT,  S)">  111.    :3:iO;  Pur-  » Austin   v.    Wohler,    5    Rra  hv. 

kins    V.    Swank,     43    Mi.ss.     319;  (111.  Aj)]).)  300.      A  nu'chanic  may 

O'Kourke  v.  O'CVjnnrT,  39  (Jal.  442;  lilc  liis  lii'n  a;^aiiist  the  person  who 

Hapi)in  V.  D(jty,  2r>  Wis.    573;   E<1-  hcM  the  U'^al  title  wlien  the  work 

wardH  t\  Tlioinj)son.  71  N.  C.  177.  was    commeiiccd,    and   he   is   not 

'  I'ritchanl   r.  Hrown,    4   N.    H,  hound  to  intiuire   further  or  take 

897;  lOi'^Hc!!  11.  I{ans.»m,  70  III.  lOH.  notice  of  any  suhseijuent  eonvey- 

*  Matthews  r,  Dcinerritt,  22  Me.  nnecH  of    the    jiropcrty  ;      Fourth 

812.  Ave.  Hap.  Chiiicli  v.  Sehreiner,  8d 

♦White    V.   Full.-r,   38  Vt.    201;  Pa.  St.  KM. 


G40  ABSTRACTS    OF    TITLE. 

no  rights  as  airainst  the  lien.  This  is  in  consonance  with 
tlic  genenildocti'ine  on  thcsubjectof  mechanics'  liens,  which 
provides  that  the  lien  shall  take  effect  from  the  time  of  the 
commencement  of  the  work,  and  that  no  sale  or  transfer 
thereafter  is  sullicient  to  divest  it.' 

§  20.  Continued — Easements  and  Servitudes.  In  ad 
dition  to  all  the  recommendations  heretofore  made,  it  is  fur- 
ther suggested  that  an  actual  inspection  of  the  premises  be 
had  for  the  express  purpose  of  ascertaining  whether  there 
are  any  servitudes  resting  upon  the  land  that  have  not 
been  disclosed  by  the  ab'stract.  This,  at  first  blush,  may 
seem  an  unnecessary  and  useless  proceeding,  yet  there  are 
many  conditions  and  circumstances  that  not  only  justify 
such  a  course  but  render  it  an  imperative  duty.  It  is  true 
that,  as  a  rule,  a  claim  for  an  easement  must  be  founded 
upon  a  grant  by  deed,  yet  an  easement  may  pass  by  implica- 
tion, when  its  existence  is  necessary  to  the  enjoyment  of  that 
which  is  expressly  granted  or  reserved,  upon  the  principle 
that,  where  one  grants  anything  to  another,  he  thereby  grants 
him  the  means  of  enjoying  it,  whether  expressed  or  not.' 
This  is  well  illustrated  in  the  rule  of  the  common  law  which 
provides  that,  where  the  owner  of  two  heritages,  or  of  one 
heritage  of  several  parts,  has  arranged  and  adapted  them  so 
that  one  derives  a  benefit  or  advantage  from  the  other  of  a 
continuous  and  obvious  character,  and  lie  sells  one  of  them 
without  making  mention  of  those  incidental  advantages  or 
burdens  of  one  in  respect  to  the  other,  there  is,  in  the  silence 
of  the  parties,  an  implied  understanding  and  agreement  that 
these  advantages  and  burdens,  respectively,  shall  continue 
as  before  the  separation  of  the  title.'  But  in  order  that  an 
easement  should  pass  by  implication,  under  the  grant  of  an 
estate,  it  must  be  obvious  to  any  observer,  while  an  apparent 

'  Dunklee  v.  Crane,  103  IMass.  470;  Dillman  v.  Hoffman,  38  Wis.  559. 

Thielman  v.  Carr,  75  111.  385;  Me-  ^  Morrison  v.  King,  62    111.   30; 

han  V.  Williams,  2  Daly  (N.  Y.),  Lampman  v.  Milks,  21   N.  Y.  505; 

367.  Jones  v.  Jenkins,  34  Md.  I,  and  see 

'Lanier  v.  Booth,  50   Miss.  410;  Wash.  Easement,  58. 
Pijigree  v.  McDulTe,  56  N.  H.  306; 


OPINIONS    OF    TITLE.  041 

sign  of  servitiule  must  be  impresseil  upon  the  servient  estate  : 
in  other  words,  the  marks  of  the  burden  must  be  open  and 
•visible.'  Where  these  conditions  exist,  their  effect  upon  the 
servient  estate  is  frequently  productive  of  results  that  the 
purchaser  neither  anticipated  nor  intended,  but  of  which  he 
might  have  been  fully  apprised  had  proper  inquiry  and 
examination  been  m.ido  prior  to  the  acceptance  of  the 
title.  These  remarks  are  particularl}^  true  with  regard  to 
city  property  or  property  in  populous  neighborhoods,  where 
buildings  and  improvements  crowd  and  encroach  upon  each 
other,  ofttimes  disclosing,  upon  even  a  casual  inspection,  all 
the  marks  of  servitude,  and  thereby  charging  the  purchaser 
with  notice  of  their  existence." 

§  21.  Continued — Homestead.  It  will  be  remembered 
that  in  several  of  the  States  the  right  of  homestead  is  a 
special  estate  requiring  a  special  release  to  divest,  and  in 
other  States,  where  it  is  regarded  merely  as  a  statutory  right 
of  exemption,  certain  formalities  are  expressly  necessary  to 
a  waiver.  "Where  such  laws  obtain,  and  the  conveyances 
make  no  reference  to  the  homestead,  even  though  the  posses- 
sion of  the  land  be  shown  to  be  in  the  parties  conveying,  a 
further  inquiry  must  be  made  as  to  the  character  of  the 
possession,  and  a  special  release  or  Avaiver  of  the  homestoal 
right  obtained  when  such  inquiry  expressly  or  iinplii'dlv 
discloses  a  homestead  occupancy. 

§  22.     Printed   Copies.     When    large    subdivisions    are 

'  ruttfrwoitli     i\   Crawford,    46  posed  to  viow  with  fliiiiint>y  tlirn'- 

N.  Y.  :!l'.t.  on,  and  the  owner  sold  tlie  north 

'  So  lield  where  the  owner  of  portion  of  the  lot  to  tiie  eenlr^' 
preniisi-sdiviiled  the  same  east  and  of  the  south  wall,  with  the  huild- 
WL'st  and  erected  a  huiMin;;  on  the  ing,  to  tin-  jtlaintiir,  and  after- 
north  part,  placing  the  south  wall  ward  sold  the  south  lialf  of  the  l<,t 
half  on  each  piece,  with  a  Hue  pro-  to  the  defendant,  who  contrihuted 
jecting  eight  inches  on  the  south  to  the  expense  of  the  party  wall, 
lot,  which  waK  used  to  caiTy  off  tlie  and  the  latter  gave  notice  of  .m 
Binokofrom  a  furnai-eju-nnanently  intention  t<»  dose  uji  the  flue, where- 
attached  in  the  Iniilding,  the  flue  upon  the  |)l.'iinlilf  tili-d  his  liil!  to 
h<-ing  necesHary  U)  the  use  of  enjcjin  the  net:  Ingals  r.  riiiinon- 
thc  furnace;  tlie  flue  stood  ex-  don,  75  III.  lib. 
41 


042  ABSTRACTS    OF   TITLE, 

iir.ule  for  general  sale  to  purchasers  of  small  lots,  it  has  now 
become  customary  to  duplicate  the  original  abstract  to  the 
entire  tract  by  printed  co})ies.  This  is  done  to  avoid  the 
ox])ense  of  a  separate  search  for  each  lot  of  the  subdivision 
as  well  as  a  scrivener's  copy  of  the  original,  and  it  is  claimed 
that  such  ])rinted  copies  are  far  more  reliable  and  trust- 
worthy than  where  a  written  copy  is  made  from  the  original 
for  every  transfer.  Where  the  work  is  performed  consci- 
entiously and  carefully  this  is  probably  true,  yet  the  great 
mass  of  the  profession  have  set  their  faces  strongly  against 
the  use  of  printed  copies  and  many  refuse  to  ])ronounce  upon 
a  title  disclosed  by  them,  unless  the  original  is  also  pro- 
duced at  the  same  time  for  comparison  and  insi)ection.  This 
strongly  grounded  ijrejudice  arises  from  the  fact  that  the 
temptation  for  the  interpolation  of  foreign  matter,  or  the 
suppression  or  expurgation  of  original  matter,  is  so  great, 
that  unscrupulous  parties  not  infrequently  do  not  hesitate  to 
resort  to  such  expedients  to  conceal  the  defects  of  imperfect 
titles.  A  printed  copy,  if  made  by  an  honorable  and  respon- 
siljle  person,  who,  at  the  close  of  such  copy  appends  a  cer- 
tificate of  verification,  loses  some  of  its  objectionable  features, 
yet  this  is  but  a  poor  ])rotection,  as  the  printer  merely  pre- 
sents Avhat  he  finds,  and  if  foreign  matter  has  been  intro- 
duced into  the  original  it  will  of  course  be  reproduced  in  the 
duplicate.  Kor  does  the  fact  that  a  comparison  of  such 
duplicate  with  the  original  has  been  made  by  a  notary,  and 
of  which  fact  a  certificate  under  his  hand  and  official  seal 
accompanies  the  copy,  make  the  copy  much,  if  any,  more 
reliable.  In  both  of  these  instances  the  opportunities  for 
fraud  and  imposition  are  present,  while  ignorance,  careless- 
ness, mistake  and  accident  may  all  conspire,  where  no  bad 
faith  exists,  to  render  such  copy  inaccurate  and  unreliable. 
But  as  printed  copies  will  continue  to  be  used,  and  as  in  many 
instances  the  cost  of  an  original  abstract  would  be  equal  to 
the  price  of  the  land,  care  should  be  observed  to  see  that 
every  precaution  has  been  taken  to  insure  the  reliability  of 
such  co]iy  and  prove  its  accuracy.  This  can,  in  a  large 
measure,  be  successfully  accomplished  by  a  verification  of 


OPINIONS   OF   TITLE.  C)-13 

same  by  the  examiner  who  compiled  the  original,  and  it  is 
recommended  that,  in  every  instance  where  a  printed  copy 
is  offered  in  support  of  title,  a  comparison  be  first  made  by 
the  examiner,  and  a  certificate  under  his  hand,  that  same  is 
a  true  copy,  be  appended  thereto.  To  insure  further  accu- 
racy the  examiner  should  write  his  name,  or  at  least  his 
initials,  upon  eveiT  pJige  or  sheet  of  the  cop}",  and  if  after 
all  this,  imposition  is  still  practiced,  counsel  will  at  least  have 
the  satisfaction  of  knowing  tliat  the  imposition  was  beyond 
his  power  to  prevent  and  that  he  has  fully  performed  his 
duty  in  the  matter.' 

§  23.  Framing  Opinions.  After  the  abstract  has  been 
thoroughly  perused,  the  inquines  answered,  the  requisitions 
satisfactorily  supplied,  and  the  relative  rights  of  parties  de- 
termined, counsel  should  proceed  to  formulate  his  opinion  in 
a  connected  and  orderly  manner.  This  will  include :  first,  a 
concise  caption  of  title,  similar  to  that  which  prefaces  the 
examination,  describing  the  object  and  purport  of  the  opin- 
ion. Then  follows  the  result  of  his  investigations,  and  here 
should  be  stated  all  the  defects  and  irregularities  which  he 
may  deem  worthy  of  notice  as  affecting  the  title.  Finally 
comes  the  formal  opinion,  which  should  be  as  concise  and 
terse  as  possiljle,  and  based  u])on  the  abstract  and  the  defects 
or  other  mattei's  noted  in  the  stating  part  of  the  opinion. 
Should  the  exigencies  of  the  case  require  it,  or  the  client  so 
direct,  counsel  may  add  such  directions  or  suggestions  as  to 
him  may  seem  expedient  in  perfecting  what  the  abstract 
shows  to  be  an  imj)erfect  title,  but  it  is  suggested  that  the 
better  way  is  to  communicate  such  information  or  directions, 
together  with  any  liy})othetical  ojjinions,  by  a  separate  writ- 
ing, and  confine  the  opini<jn,  which  it  is  pro]iosed  to  annex 
to  the  ab.jtract,  solely  to  tlie  state  of  the  title  wliicli  tho 
abstract  ])r('s<'nts. 

§  24.  Opinions  of  Title.  A  formal  opinion  upon  tho 
merits  of  tiio  j)roir<.'red  title  does  not  seem  to  li;iv»'  licnicon- 

'  For  a  moro  fxt<'n'lf<l  (liwuKHinn       nl>l<'    uWstnvt    m-o     Wmvi  Hu    on 
a-s  Uj  wlmt  coiiMtilulcb  a  incrclmnt-       Vuiidura,  p.  'iW  vt  tn:(j. 


I'.ii  ABSTRACTS   OF    TITLE. 

templatcd  by  the  English  Avriters  on  the  subject  of  abstracts, 
nor  by  those  American  Avriters  who  have  heretofore  ven- 
tured to  touch  upon  the  theme,  and  the  same  is  doubtless  an 
outgrowth  of  "western  civilization."  Tiic  queries,  objec- 
tions, requisitions,  etc.,  of  an  English  examiner  in  a  measure 
take  the  place  of  a  formal  opinion  as  they  tend  to  iK^te  and 
point  out  defects,  and  make  suggestions  whereby  defects 
may  be  remedied  and  missing  links  sup})lied.  But,  as  ab- 
stracts are  now  })repared,  a  carefully  framed  opinion  is  an 
inseparable  incident  and  a  fitting  climax  of  every  examina- 
tion. There  are  two  methods  of  framing  opinions  of  title, 
both  of  which  are  in  general  use.  The  first,  and  most  com- 
mon, consists  of  statements  based  upon,  j;ind  annexed  to,  a 
formal  abstract,  and  is  made  by  counsel  after  a  perusal  of  the 
same;  the  second,  is  where  the  examiner,  after  investigating 
the  title,  by  personal  examination  of  the  records  or  of  his 
own  indices  thereto,  places  the  title  in  some  individual 
named  subject  to  whatever  impairments  he  may  find  of  record. 
This  latter  method  is  also  known  as  "certifying  the  title." 
No  chain  or  affirmative  evidence  is  usually  shown  in  such 
cases.  Frequently  such  certificate  is  based  upon  a  directed 
a'ssumption  of  title  in  a  certain  person  at  a  certain  date,  and 
the  examiner  certifies  from  his  examination  of  the  records  from 
such  date.  In  the  latter  case,  counsel  assumes  the  dual  office 
of  examiner  and  attorney,  and  in  many  cities,  where  no  spe- 
cial class  of  examining  conveyancers  exists,  all  abstracts  and 
examinations  are  made  in  this  manner.  The  plan  has  little 
to  recommend  and  much  to  condemn  it,  and  in  the  opinion 
of  the  ■UT'iter  more  satisfactory  results  are  obtained,  at  least 
in  populous  and  active  cities,  by  a  thorough  disassociation  of 
abstract  maker  and  counsel.'  An  opinion  of  title  made  in 
the  manner  just  described  would  be  prepared  somewhat  in 
the  following  manner : 

'  Possibly  the  writer's  experience  yeai-s  contemplated,  but  from  what 

has  tended  to  prejudice  him  in  favor  hehasseenofCertiticates  of  Title," 

of  a  system  with  which  he  has  been  he  is  strongly  inclined  to  condemn 

closely  associated,  and  whose  most  their  use. 
intricate  movements    he    has  for 


OPINIONS   OF    TITLE.  G45 


OriXIOX  OF  TITLE 

to 

Lots  17  and  IS,  Block  3,  Town  of  Hyde  Park,  Cool  County, 

Ills. 


By  dii'cctioii  of  William  P.  Smith,  at  whose  request  this 
ojnnion  is  giveii^  it  is  assumed  urithout  exainination^  that  on 
June  11,  1S70,  the  Trustees  of  the  Town  of  Hyde  Park  held 
the  title  to  the  fee  of  said  Lots  17  and  IS,  free  from  incum- 
hrance.  From  an  examination  of  the  records  of  Cook  County, 
Ills.,  {or,  of  our  Iwdexes  to  the  Records,  etc.)  of  Deeds,  Judtj- 
■ments,  and  Tax  Sales,  madeupontlie  above  stated  assumption, 
we  conclude  that  the  title  to  said  Lots  is  now  vested  in  John 
F.  Hanson,  sidjject  to  defects,  if  any,  existing  in  the  execution 
or  ackjiowledgment  of  the  following  deed:  {or  suhject  to  the 
lien  of  the  following  mortgage,  etc.) 

Here  follows  an  abstract  or  siiinmarv  of  tlic  deed,  morto-a<i"e, 
lien,  judgment  or  other  matter,  which,  in  the  o])inion  of  the 
person  certifying,  impairs  or  clouds  the  title  of  the  individ- 
ual in  whom  it  rests;  if  nothing  appears  to  impair  the  title,  say: 

Suhject  to  no  objection  indicated  hy  our  looks. 

After  this,  any  special  matter  by  way  of  qualilication  or  ex- 
]>hination  may  be  inserted  which  should  be  followed  by  the 
date  of  the  examination  and  the  examiner's  signature  In 
these  certificates  a  wideo])tion  is  left  with  tlieexaminei-.  and 
in  this  lies  the  chief  source  of  danger.  He  may  regard  <»i'  dis- 
regard all  sucli  instruments  as  he  may  see  (it,  ])assing  not  only 
on  their  sulliciency  but  theii- legal elfect,  and  that  without  dis- 

'  Tills  Is  ;i  matter  of  protection  to  tion  is  made  it  slionld  !)e  so  staU'il, 

the  examiner.    ItHliowsthe  privity  while  it  is  always  a»lvisal)le  to  state 

of  contract  exLstinj;  between  client  as  wrll  that  same  hasheen  done  liy 

and  counsel,  and    previ'nts  claims  din-ctiun  ami  often  at  whose  iliiec- 

fordama^'^  heiii^ asserted  hy  third  tion.      This  is  a  ilirect  and  i>i)sitiv»> 

parties,  who   may  have  purchased  notice  that  the  examination  is  im- 

or  advancerl  money  on  the   aKsin*-  perfect  <»n  <-ertaiii  recoj^ni/ed  theo- 

ances  of  the  certillcate:    See  Hanlc  vies  df  the    law    of  conveyan<inj^ 

1'.  Wanl.  1(»0  U.  S.  1!».'»  an<l  re^'istration. 

'  In  every  c.xse  where  an  assump- 


G4:G  ABSTRACTS    OF    TITLE. 

playing  thorn,  or  displaying  only  such   of  them   as,    in    his 
opinion,  create  liens  or  incumbrances  upon  the  title. 

Should  the  examiner  desire  to  qualify  his  0})inion,  as  is 
frequently  the  case,  this  may  be  done  by  a  statement  sub- 
stantially as  follows: 

This  opini 0)1  is  not  to  he  coiistnted  as  covering : 
1st.     Any  matter  or  thing  not  noted  on  our  indexes  to  rec- 
ords in  Cook  County y  111.^  of  deeds ,  judgments ,  and  tax  sales, 
and  especially  unpaid  taxes  and  adverse  possession. 
2d.     Any  other  matter  or  thing,  etc. 

§25.  Contimied — Certificates  of  Title.  A  familiar  in- 
stance of  the  subject  under  discussion  is  furnished  by  a  late 
Missouri  case/  wherein  the  examiner  compiled  an  abstract  in 
which  he  certified  that,  "  as  per  the  county  records  and  the 
county  index  to  said  records,"  the  title  to  the  real  estate  in 
question  was  "  good  "  on  the  day  of  the  date  of  such  abstract 
in  one  Daniel  Cobb,  "  and  that  there  was  no  incumbrance 
thereon,  nor  any  lion  thereon  excepting  for  certain  taxes 
therein  specified."  As  a  matter  of  fact  a  trust  deed  was  then 
of  record  purporting  to  convey  the  subject  of  the  examination, 
but  executed  by  one  who  at  the  time  had  no  record  title, 
although  he  afterward  acquired  same,  and  this  subsequently 
acquired  title  was  that  which  the  examiner  had  certified  as 
'*  good  "  in  Daniel  Cobb,  the  second  grantee.  The  examiner 
in  this  case,  admitted  that  he  was  wholly  ignorant  of  the 
existence  of  the  prior  deed,  but  attempted  to  justify  upon  the 
gro'und  that  a  deed  recorded  before  the  grantor  has  any  record 
title  may  be  safely  disregarded  in  examinations  of  title,  under 
the  system  of  registration  and  notice  adopted  in  the  United 
States,  and  upon  this  point  the  case  turned  in  the  appellate 
court.  Upon  a  question  of  this  character  the  examiner  can 
afford  to  take  no  chances.  The  law  is  so  difficult;  the  excep- 
tions to  its  rules  so  numerous;  the  cases  so  many  and  so 
slightly  distinguished,  so  often  apparently  conflicting,  that 

'  Dodd  V.  Williams,  3  Mo.  App.  278.  Consult  in  tliLs  connection,  Bank 
I'.  Ward,  :00  U.  S.  195. 


OPINIONS   OF   TITLE.  G-i7 

the  risk  is  too  great,  unless  lie  is  also  willing  to  assiiuie.  the 
liability  that  may  attach  to  it.  "What  constitutes  a  lien  or 
incumbrance  upon  real  estate  may  in  some  instances  be  a 
difficult  question  to  decide;  "  but  an  examiner  of  titles," 
says  Bakewell,  J.,'  "  is  bound  to  know  the  state  of  the  law 
on  the  subject,  and,  where  there  may  be  a  reasonable  doubt 
as  to  whether  such  or  such  a  recorded  instrument  is  a  lien, 
if  he  chooses  to  resolve  the  doubt  he  does  so  at  his  own 
peril.  *  *  *  If  he  does  not  choose  to  assume  this  lia- 
bility he  may  easily  avoid  it  by  noting  in  his  certificate 
every  question  which  arises  upon  the  title  as  to  which  there 
can  be  the  slightest  doubt  in  the  legal  mind,  or  by  giving  a 
list  of  deeds  and  incumbrances,  and  abstaining  from  express- 
ing any  o})inion  as  to  their  legal  elfect." 

§  26.  Opinions  Based  upon  the  Abstract.  As  a  rule 
few  lawyers  desire  to  have  anything  to  do  with  the  com- 
pilation of  the  abstract,  further  than  sucli  incidentals  as 
necessarih'  result  from  the  inquiries,  requisitions  and  ol)jcc- 
tions  made  upon  the  title.  The  assumption  of  the  dual 
character  of  examiner  and  counsel  can  rarely  be  successfully 
accomplished,  for  an  attorney  competent  to  pass  upon  tlie 
grave  questions  so  often  presented  can  hardly  s]iare  from 
his  practice  time  which  must  be  consumed  in  the  proj )a ra- 
tion and  proper  keeping  of  indices,  nor,  even  when  public 
indices  are  available,  the  time  necessary  for  a  proj^er  search; 
wliile  an  examiner  who  makes  a  business  of  furnislii ng 
abstracts  does  not,  and  from  the  very  circumstances  of  his 
business  can  not,  devote  the  time  necessary  to  keep  up  a 
theoretical  knowledge  of  the  law  applicable  to  examinations 
of  titUi,  while  he  is  entirely  deficient  in  that  fine  legal 
acumen  tliat  comes  only  fi-om  direct  and  ])ei-sonal  experi- 
ence in  the  every-day  walks  of  a  lawyer's  life.  Tlie  exam- 
iner, by  constant  ])ractice,  becojnes  very  expert  in  compila- 
tions, far  more  so  tiian  a  lawyer  making  occasional  searches 
can  ever  hojM;  to  bo,  but  by  constantly  directing  his  at  leii- 
tion  only  to  re(juisites  and  defects  of  foi-ni  in  instiuincnts 

'  Dodd  V.  WilliainH,  3  Mo.  Ajui.  UTS. 


G43  ABSTRACTS   OF   TITLE. 

ami  proceedings  which  pass  under  his  hands,  and  tliouf^h 
becoming,  so  far  as  rekxtes  to  such  matters,  an  authority,  he 
loses  sig-lit  of  the  legal  effect  of  such  instruments  and  pro- 
ceedings, and  for  this  reason,  if  none  other,  should  never 
attempt  an  opinion. 

The  opinion  of  counsel  is  based,  in  the  first  instance,  n])on 
the  presumption,  necessarily  entertained,  that  the  examiner 
has  faithfully  performed  his  work  and  that  the  abstract  is  a 
true  reflex  of  the  records,  and  of  every  matter  and  thing 
shown  thereby  that  apparently  affects  or  implicates  the 
title  under  consideration.  It  may  be  confined  to  a  bald 
statement  of  the  title  shown  by  such  abstract,  with  no  com- 
ments or  suggestions,  or  it  may  indicate  the  weakness  of 
the  title  with  recommendations  for  strengthening  same. 
But  inasmuch  as  the  client  frequently  seeks  professional 
aid,  quite  as  much  for  advice  and  assistance  in  perfecting  a 
title,  this  matter  will  depend  largely  upon  the  client's 
wishes.  In  the  event  just  indicated,  the  perusal  and  analy- 
sis will  suggest  possibly  many  inquiries,  Avhich,  unless  rem- 
edied before  the  opinion  is  rendered,  must  find  adequate 
expression  therein  and  where,  ui)on  a  continuation,  former 
opinions  have  suggested  acts  to  be  done,  the  continuation 
should  shoAv  compliance  with  such  suggestions.  Where  the 
title  is  defective  from  any  cause  ca])able  of  easy  remedy,  as 
where  missing  deeds  are  found  upon  incpiiry,  or  satisfactory 
information  is  furnished  in  answer  to  requisitions,  the  sev- 
eral matters  should  be  placed  on  record  and  a  supplemental 
abstract  made  covering  such  special  matter.  Upon  the 
original  and  supplemental  abstract  the  opinion  may  be  ren- 
dered, and  if  all  doubts  have  been  resolved  thereby  such 
opinion  would  consist  of  little  else  than  a  statement  that 
the  fee  of  the  premises  rests  in  whoever  is  shown  to  be  the 
owner,  unincumbered  and  unembarrassed.  More  frequently, 
however,  counsel  prefer  to  recite  the  objectionable  features, 
and  qualify  the  opinion  by  reference  to  such  recitals,  leav- 
ing the  client  to  accept  or  reject  the  title,  as  his  inclination 
may  suggest,  or  take  steps  to  perfect  it  in  accoi dance  with 


OPINIONS   OF   TITLE.  G49 

the  opinion.     "When  sucli  is  tlio  case  an  o})inion  mav  be  ren- 
dered somewhat  al'ter  the  following  manner; 

OriXIOy  OF  TITLE 
to 
Lot  10,  {)i  Block  4^0,  of  Si7nj)son^s  siiMivision  of  the  N.  E. 
qr.  of  Sec.  10,  T.  12  N.,  R.  13  E.,  as  discloserl  It/  the  an- 
nexed abstract,  made  hy  IlcuJdock,  Vallette  and  Eickcords, 
and  dated  Any.  15,  1SS3. 


I  have  examined  the  annexed  abstract,  consisting  of  twenty- 
three  numhers,  relative  to  the  title  thereby  disclosed  to  the 
premises  above,  and  in  said  abstract  described,  andjind: 

A  defective  deed,  shoion  as  No.  10  from  Thomas  Jones  and 
Olivia,  his  loife,  to  Cyrus  B.  Maxwell,  in  that  said  Olivia 
failed  to  release  her  dower  in  the  manner  then  {18^2)  pren 
scribed  by  law. 

A  defective  deed,  shown  as  No.  18,  from  Bensoii  Hardy  to 
William  J.  IIanso7i,  in  that  the  wife  of  said  Hardy,  she  hav- 
ing been  shown  to  be  then  and  still  living,  failed  to  release  her 
dower  by  joining  in  the  execution  of  said  deed. 

A  mortgage  for  $500.00,  shown  as  No.  ID,  from  William 
J.  Hanson  to  Thomas  Jackson,  the  indebtedness  thereby  secured 
maturing  Jan.  31, 1880. 

I  further  find : 

No  releases  or  vxiivers  of  the  right  of  doicer  purjmrting  to 
be  m,a/leby  Olivia  Jones  or  the  wife  of  Benson  Hardy,  shown 
by  said  ahstract  to  be  of  record  in  this  county. 

No  release  or  discharge  of  the  mortgage  (d>i>i^,-  })<if,d. 

And  1  am  of  opinion  : 

That  conveyance  No.  10  creates  no  lien,  cloud,  or  charge 
vpon  the  title,  aiul  that  the  defeat  noted  is  cured  by  the  lajtse 
(f  time  ami  the  poMscssion  of  the  therein  mentioned  granfor.s' 
assigns;  it  satisfactitrily  aj>j>eari)ig  th<d  Tht>inas  Junes  has 
been  demlfor  m<jre  than  twenty  years. 

That  conveyance  No.  IS  disrloses  a  rontii,,/,  nt  11,  n  or 
rhnrge  upon  the  title  to  the  extent  <f  the  Im-Joiate  right  of 
dower  of  the  wife  <f  Benson  Hardy. 


C50  ABSTKACTS    OF   TITLE. 

That  the  mortr/age^  No.  19,  is  a  valid  suhoistinn  incum- 
brance. 

I  am  further  of  opinion : 

That  the  title  to  the  fee  of  said  premises  is  noio  vested  in 
William  Springer,  free  from  all  liens,  charges  and  incum- 
brances a2)p>earing  of  record,  and  shoion  by  said  abstract,  ex- 
cept those  hereinabove  expressly  ennmerated  and  described,. 

To  perfect  the  title  of  said  Springer,  I  would  recom- 
mend : 

A  deed  of  release  from  the  wife  of  Benson  Hardy. 

A  deed  of  release  from  Thomas  Jackson,  said  mortgagee,  or 
his  assigns. 

{Signed) 

THOMAS  W.  BROWN, 

Counsel. 

The  forco:oing  .crude  outline  will  serve  to  suggest  a  form 
for  the  expression  of  opinions,  and  the  general  manner  in 
which  such  opinions  should  exhibit  the  defects  of  the  title. 
It  is  necessarily  brief,  and,  for  the  better  purposes  of  illustra- 
tion, ver^'  simple,  yet  will  indicate  the  method  of  treatment 
of  more  difficult  and  complicated  matters. 

"Where  the  abstract  consists  of  several  continuations,  made 
by  the  same  or  different  examiners,  it  may  be  well  to  preface 
the  opinion  with  a  recital  of  the  different  examinations 
under  consideration,  thus : 

I  have  examined  what  j)urports  to  be  an  examination  by 
Handy,  Simmons  i&  Co.,  from  the  government  to  date  of  June 
10,  1892. 

A  continuation  [or,  a  certified^  copy  of  continuatiori\  of 
same  by  Haddock,  Coxe  (&  Co.,  to  date  of  April  20,  1S79. 

A  continuation  by  Haddock,  Vallette  <&  Rickcords  to  date 
of  July  1,  1892,  and  find,  etc. 

If  the  abstract  itself  for  any  reason  is  not  merchantable, 
it  is  better  to  apprise  the  client  of  this  defect  before  attem]  t- 
ing  to  make  a  perusal,  that  proper  steps  may  be  taken  to  rem- 
edy the  defect,  but  should  the  client  be  willing  to  accept  the 


OPINIONS   OF   TITLE.  05 1 

abstract  as  furnished  and  direct  an  opinion  thereon,  prudence 
would  suggest  that  counsel  specitically  note  the  same  in  his 
opinion,  as  for  instance : 

The  continuation  purporting  to  he  made  hy  Haddock^  Coxe 
db  Co.,  under  date  of  April  20,  1S79,  /consider  U7imerchant- 
alle,  in  that  it  appears  to  he  a  copy  and  not  an  original,  and 
is  without  proper  certification;  hut  hy  direction  of  liohert 
Smith,  3<q.,  for  whom  this  opinian  is  made,  1  assume  that 
it  is  a  true  copy,  and  this  ojrinion  is  expressly  suhject  to  and 
qualified  hy  undisclosed  defects,  if  any,  during  the  period  coc- 
ered  hy  said  search. 

It  is  customary  and  quite  proper  to  add  certain  directions 
or  suggestions  as  aids  to  the  purchaser  in  making  inquiries 
in  pais  or  with  resj)ect  to  matters  not  covered  by  the  exam- 
ination, and  these  suggestions  niay  be  shown  by  a  note  just 
before  the  signature  in  this  manner: 

I^ote:     The  taxes  for  1892  are  now  a  lien. 

Attention  is  directed  to  the  present  occupation  of  the 
premises,  if  any,  and  the  rights  of  the  jKirties  inpossessio/i. 

§  27.  Perspicuity  of  Expression.  In  every  case  the 
language  of  an  o})inion  should  be  clear  and  j)ersj)icuous. 
This  a  prime  requisite.  Counsel  often  shirk  a  direct  opinion 
by  hyjKjthetical  statements  as  to  what  the  title  might  be  if 
certain  matters  could  be  shown;  as,  that  the  title  "  would 
be  good  in  John  Smith,  provided,"  etc.  This  can  not  be  re- 
garded as  a  desirable  method  of  expression.  The  issue  should 
he  met  fairly. 

So  also,  the  use  of  qualifying  adjectives  in  connection  with 
title  is  very  objoctionable.  Notwithstanding  the  fact  that  a 
court  of  e<iuity  sometimes  hesitates  to  ]ir()nouneo  a  title 
invalid  that  it  yet  will  not  force  upon  an  unwilling  purchaser, 
and  hence  pronounces  it  doul)tfid,  there  an;  no  de^^rees  of 
e.xcellence  in  tith-s.'     At  law,  and  it  is  th;.'  legal  title  onlv 

'  It  i.s  thn  HiM'<'ifi<- '  l.iiiii  of  titl<' to       inj;  u|k»ii  itH  validity.     In  coiiiimmh 
wliich  a  court  allii'l<  .s  \\  In  n  j>a.sH-       i>arlaiiru  \Vf  H|H-ak  of  ^ixkI  titUs, 


G53  ABSTKACTS    OF    TITLE. 

M'hioh  is  under  examination,  all  titles  arc  valid  or  invalid. 
It  is  nut  in  <^-()(id  form,  therefore,  to  say  that  a  ''  good"  title 
is  vested  in  any  person,  for  a  "  l)ad  "  lilK'  is  no  title.  It  is 
still  worse  to  say,  as  is  often  done,  that  A  13  possesses  "  sub- 
stantially a  good  title,"  or,  that  the  title  is  "substantially 
good"  in  a  jierson  named.  As  colhxiuial  i)li  rases  and  forms 
of  ex})ression  they  may,  and  do  have,  a  delinite  meaning,  but 
in  formally  written  opinions  tliey  should  have  no  ])lace.  The 
title  should  be  placed  in  whomsoever  it  is  nuide  to  appear, 
and  it  must  rest  somewhere.  If  it  is  obscured,  or  insecure 
in  the  person  named,  state  the  facts  and  announce  the  legal 
effect.  There  is  no  such  thing  in  law  or  in  fact  as  a  doubt- 
ful title  j)er  se,  although  the  claim  of  an  individual  to  title 
may  be  the  subject  of  doubt.  The  fee  is  always  in  existence; 
it  is  never  in  abeyance;  it  is  never  "  good,"  "  bad  "  or  *'  doubt- 
ful." The  evidences  of  the  rights  of  ownership  may  be  all 
or  cither,  but  the  confusion  of  terms  sometimes  betrays  coun- 
sel into  expressions  that  he  does  not  really  mean. 

§  2S.  Oral  Opinions.  The  questions  as  to  the  propriety  or 
expediency  of  an  oral  opinion  in  matters  of  title  are  solely 
for  individual  solution.  It  Avould  seem  that  in  so  weighty  a 
matter  as  the  acceptance  or  rejection  of  a  title,  if  an  opinion 
is  worth  rendering,  it  is  worth  reducing  to  writing.  It  is, 
or  should  be,  the  result  of  careful  and  critical  examination, 
and  presumably,  has  cost  counsel  many  hours  of  laborious 
investigation.  Whether  the  questions  presented  be  trivial  or 
momentous,  since  the  decision  of  the  issue  is  of  vital  impor- 
tance to  the  intending  purchaser,  is  it  well  to  leave  it  to  his 
unaided  recollection  ?  Whatever  action  counsel  may  have 
taken,  unless  he  preserves  all  his  memoranda,  the  pressure 

bad  titles,  and  doubtful  titles  but  common  tenancy  only  one  can  pos- 

we  mean  the  claim  and  the  evi-  soss  it.     Tlie  cZra'/n,  of  the  others  we 

dence  upon  which  it  is  foimded,  often  denominate  titles;  a  palpable 

and  not  the  title  itself .    An  allodial  misnomer;  and  in  speaking  of  such 

title  in  fee  is  the  highest  tj'pe  of  claims  we  frequently  say  his  title  is 

ownei-ship  and  estate,  and  this  is  bad,  etc.,  meaning,  however,  the 

always  "  good."    A  claim  to  this  insufficiency  of  the  evidence  of  his 

ownei'ship  and  estate  may  be  made  cluiui. 
by  several,  but  unless  there  is  a 


OnXIONS    OF    TITLE.  G53 

of  other  matters  soon  drives  from  his  miml,  and  when, 
a  short  time  afterward,  the  purchaser,  who  now  entertains 
but  an  indistinct  recollection  of  what  was  told  him,  applies 
to  counsel  for  information  on  some  particular  point  con- 
nected therewith,  he  can  remember  nothing  whatever  about 
it.  The  opinion  in  s\ich  a  case,  except  as  it  may  have  in- 
fluenced the  sale  at  the  time  it  was  rendered,  was  ]>ractically 
useless  and  the  time  consumed  in  its  preparation,  in  one 
sense,  wasted  and  lost.  Again,  the  client  may  not  have 
understood  it  as  counsel  pronounced  it,  and  a  dispute  arises 
between  counsel  and  client  as  to  the  advice  actually  given; 
and  thus  counsel  is  drawn  into  a  controversy,  the  most  de- 
testable in  which  it  is  possible  for  a  law3^er  to  be  engaged. 
All  this  can  be  avoided  by  reducing  the  opinion  to  writing. 
There  it  remains  unchanged,  with  no  chance  for  disputes 
or  misconstructions;  always  available  when  needed;  and  a 
strong  pillar  in  support  of  the  title  when  it  is  again  i)laced 
upon  the  market. 

§  20.  Liability  for  Erroneous  Opinions.  An  attorney 
employed  by  a  i)urchaser  of  real  pro})erty  to  investigate  the 
title  of  the  grantor  prior  to  the  purchase,  impliedly  con- 
tracts to  exercise  reasonable  care  and  skill  in  the  perform- 
ance of  the  undertaking,  and  if  he  is  negligent  or  fail  to  ex- 
ercise such  reasonable  care  and  skill  in  the  discharge  of  the 
stipulated  service,  he  is  responsible  to  his  employer  for  the 
loss  occasioned  by  such  neglect  or  want  of  care  and  skill; 
like  conditions  and  results  also  follow  an  cmidoynicnt  to 
investigate  and  ascertain  whether  |>i<»j>(M"ty  olTeicd  is  a  safe 
or  sufficient  security  for  a  loan  of  money.'  The  oMigMtion 
iinjiosed  on  the  attorney  docs  not  retiuirc  of  liiiii  the 
possession  of  j)orfeft  log.'il  knowledge  or  the  high  est  de- 
gree of  skill  in  relation  io  Imsiiiess  of  that  character, 
nor  that  he  will  c(^iidiict  it  with  the  greatest  di'greo 
of  diligcmce,  caro  and  |)iiidence,  but  siin|)ly  that  lie 
shall   pos.sess  the  r)i-dinary   legal   knowledge  and   skill  com- 

'  A(l<lis<jn  on  Torit.  (Olli  K<1.)  400;  Vvi\.  I{«p.  HO;  Ilous.-inan  v.  (iiianl, 
D  >l<l  V.  Williams,  a  Mo.  App.  L'TH;  ftr.,  Ash'ii,  H|  I'a.  St.  'J.Vl;  Watwon 
Uuiulee    -Mt^'.    Co.    v.    Hii;,'hcH,   20       r.  .Miiiilioa.l,  r,7  I'a.  St.  Itil. 


G54  ABSTRACTS    OF    TITLE. 

mon  to  members  of  the  profession;  and  that,  in  the  dis- 
chai'«^e  of  tlie  duties  he  has  assumed,  he  will  be  ordinarily 
and  reasonably  diligent,  careful  and  ])rudent.'  This  is  the 
ordinary  undertaking  of  every  attorney  in  every  branch  of 
legal  eni[)loyment,  and  while  courts  have  ever  been  inclined 
to  exercise  leniency  in  dealing  with  questions  of  this  char- 
acter the  rule  has  always  been  strictly  enforced  whenever 
the  facts  have  been  brought  within  its  operation.  Hence  it 
follows,  as  a  necessary  sequence,  that  if  the  attorney  fails  to 
bring  to  the  discharge  of  the  duties  assumed  by  him,  the 
ordinary  legal  knowledge  and  skill  possessed  by  members  of 
the  profession,  or  has  failed  to  discharge  the  duties  with 
ordinary  and  reasonable  diligence,  care  and  prudence,  he  will 
be  guilty  of  negligence,  and  liable  to  the  client  for  the  dam- 
ages he  may  Jia  ve  sustained  by  reason  thereof.*  In  most  of  the 
cases  where  the  question  has  been  raised  the  errors  charged 
have  related  mainly  to  the  management  of  suits,  and  con- 
sisted in  the  non-observance  of  established  forms  and  legal 
rules,'  and  the  damages  were  the  direct  result  of  the  negli- 
gence of  the  attorney.  The  rule,  however,  would  be  just  as 
applicable  to  opinions  or  assurances  of  title  and  the  attorney 
must  be  held  to  a  strict  accountability  for  acts  of  negli- 
gence. Yet  if  he  acts  in  good  faith,  to  the  best  of  his  skill, 
and  with  an  ordinary  degree  of  attention,  he  will  not  be 
responsible."  He  is  not  liable  for  mere  errors  of  judgment, 
nor  for  mistakes  of  law  in  matters  where  the  lawis-not  well 
settled.'  Nor  does  his  liability  extend  to  the  assignee  of  his 
employer  or  to  any  third  person,  there  being  no  privity  of 
contract  between  them."  These  are  general  princi  pies  of  uni- 
versal recognition.  In  a  late  case,  decided  by  a  federal 
court  in  Oregon,  it  was  held,  however,  that  where  an  attor- 

'  \Miarton  on  Neg.  749;  Shear.  &  Skillen  v.   Wallace,   36  Ind.    319; 

Rod.  on  Neg.  211;  Wells  on  Attys.  Walker  v.  Goodman,  30  Ala.  482. 

285;  Gambert  v.  Hart,  44  Cal.  542;  ■*  Wilson  v.  Russ,  20  Me.  421. 

SkiUen  v.  Wallace,  36  Ind.  319.  ^  Dodd  v.  Williams,   3  Mo.  App. 

•^  Spangler  v.  SeUers,  5  Fed.  Rep.  278;  Morrill  v.  Graham,  27  Tex.  646. 

882.  *  Dundee  Mtg.  Co.  v.  Hughes,  20 

3  Spangler  V.  Bro-w-n,  26  Ohio  St.  Fed.  Rep.  39;  Bank  v.  Ward,    100 

389;  Gambert  v.  Hart,  44  Cal.  542;  U.  S.  195. 


OriNIOXS   OF   TITLE.  655 

ney  who  is  employed  to  examine  tlie  title  of  property  offered 
as  security  for  a  loan,  certifies  that  the  securitv  is  a  cood 
one,  he  thereby  warrants  that  the  title  shall  not  only  be 
found  good  at  the  end  of  a  contested  litigation,  but  that  it  is 
free  from  any  pal]xible  grave  doubts  or  serioUs  questions  as 
to  its  validity."  The  learned  judge  Avho  delivered  the  fore- 
going opinion  does  not,  however,  fortify  it  with  any  citations 
of  authority,  and  diligent  search  fails  to  reveal  any;  while 
in  a  later  case,  decided  in  the  same  circuit,  it  is  held  that 
prima  facie  there  is  no  element  of  guaranty  involved  in  such 
employment;  that  the  attorney  only  undertakes  to  bring  to 
the  discharge  of  his  duty  reasonable  skill  and  diligence, 
and  does  not  warrant  or  guarantee  the  correctness  of  his 
work  any  more  than  a  physician  or  mechanic  does."  It  ra:.  y 
be  safely  said,  therefore,  that  the  statement  above  made  does 
not  present  the  true  spirit  of  the  law  in  relation  to  the  facts 
stated,  and  that  there  is  no  implied  agreement  in  the  relation 
of  counsel  and  client,  or  in  the  employment  of  the  former 
by  the  latter,  that  the  former  will  guarantee  the  soundness 
of  his  opinions,  or  that  they  will  be  ultinuitely  sustained  by 
a  court  of  last  resort. 

A  more  strict  rule  is  observed  in  case  of  examiners,  or 
where  the  attorney  professes  to  furnish  information  as  well 
as  pass  opinions  in  connection  therewith;  and  where  one  who 
proposes  to  make  a  specialty  of  examining  titles  in  the 
course  of  his  business,  gives  a  certificate  that  he  has  made 
examination  and  finds  no  incumbrance  against  certain  i)rop- 
erty,  he  \vill  be  liable  if  the  incumbrance  is  of  record  in  such 
a  way  as  to  give  constructive  notice  to  every  one  interested 

'  Pa^o  V.  Trutch,   3  Cont.   Law  the  writrr  has  exti'iidcil,  to  sustain 

Jour.  ."i-iO.     TliiTc  can  1)(' no  doubt  thestati-nu-nttliat  (In-atforni-y  «vjr- 

that,  in  a  ca.se  Hiinilar  t<j  thf  alKjve,  rajt/.s  tin- titli-,  nor  to  rliarno   him 

it  Is  undr-rKtootl  by  tlic  client  and  in-  with  any  haliiUty  uimhi  such  a  war- 

tend<'d  \)y  tlieattoniey,  tiiat  the  title  ranty. 

is  all  the  learned  juil^e*   clairiiH  it  '  Dundee  Mtg.  Co   V.  lluglies,  20 

Hhould  \h',  Ijut  no  authority  can  he  Fed.  Kcp.  U'J. 
found,  BO  far  im  the  invebtigation  of 


C5G  ABSTRACTS  OF    TITLE. 

and  nrtnal  notice  to  every  one  looking  for  it  in  the  proper 
■way.' 

§  30.  Conclusion.  In  bringing  this  book  to  a  close  the 
writer  perceives  many  ini])orfections  in  his  work,  and  feels 
that  in  abler  hands  its  trcH'itment  miglit  have  been  far  dif- 
ferent. Yet  he  ventures  to  express  a  hope  that  to  many  it 
will  furnisli  much  desired  information  and  ])e  a  practical 
hel])  and  guide;  that  it  will  assist  in  building  up  a  system 
of  title  abstracts,  now  but  ]iartially  understood  in  many 
localities,  and  be  instrumental  in  securing  a  uniformity  in 
the  methods  of  preparing  and  compiling  such  abstracts. 
The  formulas  which  are  herein  presented  are  suggestive 
merely;  examiners  and  attorneys  will  be  able  to  improve 
upon  them;  yet  it  is  believed  they  will  remain  the  substan- 
tial groundwork  of  future  extensions  and  additions,  as  rep- 
resenting the  combined  experience,  extending  over  many 
years,  of  some  of  the  ablest  examiners  of  the  century.  The 
methodical  preparation  of  abstracts  in  the  United  States  is 
yet  in  tbe  experimental  stage;  English  precedents  furnish 
no  rule  or  guide,  being  founded  upon  a  system  that  never 
had  any  ]iractical  application  in  this  country,  and,  by  rea- 
son of  the  peculiar  genius  of  our  institutions,  never  can 
have.  By  slow  degrees  we  are  formulating  a  system  essen- 
tially our  own,  and  if  this  work,  by  precept  or  suggestion, 
shall  be  instrumental  in  assisting  in  this  formation,  in  dis- 
couraging false  methods,  and  in  affording  a  light  on  obscure 
points  that  shall  aid  the  young  and  inexperienced,  the  high- 
est desire  of  the  writer,  in  relation  thereto,  Avill  be  satisfied. 

•  Dodfl  V.  Williams,  3  Mo.  App.      Clark  v.  Marshall,  34  Mo.  429;  Bank 
278;  Chase  v.  Heaney,  70  111.  2G8;      v.  Ward,  100  U.  S.  195. 

TUE   END. 


APPENDIX. 


NEW  ENGLAND  ABSTRACTS. 

A  peculiar  system  of  abstract  making  seems  to  prevail  in 
the  New  England  States,  or  certain  of  them.  This  system 
is  apparently  an  offshoot  from  that  now,  or  formerly,  prac- 
ticed by  the  English  conveyancers,  and  resembles,  in  many 
respects,  the  English  abstracts  alluded  to  in  the  body  of  this 
work,  particularly  in  "  marginal "  di\isions.  It  is  not  the 
same,  however,  as  that  expounded  and  illustrated  by  Lee, 
Moore,  and  other  late  English  writers,  but  is  probably  the 
direct  result  of  the  same,  varied,  possibly,  by  "  natural  selec- 
tion." There,  as  in  England,  though  one  plan  is  to  show 
everything  relating  to  the  title  of  the  estate  under  consider- 
ation, another,  and  the  one  apparently  in  popular  use,  is  to 
commence  with  some  early  deed  as  the  root  of  the  title,  and 
insert  after  it  a  list  of  the  conveyances  made  by  the  grantee 
to  the  point  or  time  when  the  estate  passes  out  of  him,  and 
so  continue  with  successive  grantees  until  the  ])resent  owner 
is  reached.' 

The  instruments  are  very  fairly  and  fully  abstracted,  but 
the  examiner  indulges  in  a  wealth  of  abbreviation  unknown 
to  any  other  part  of  the  country.  It  is  arranged  very  system- 
atically, and  ])r<)bably,  to  those  who  are  in  the  habit  of  exam- 
ining such  alistracts,  conveniently.  The  name  of  the  grantor, 
and  the  date  from  which  liis  title  is  traced,  is  written  at  the 
top  of  the  page  and  over  the  columns  or  margins,  which  arc 
then  Jillcd  uj)  as  follows:  The  lirst  contains  the  dates,  which 
include  the  years  of  the  indexes,  and  dates  of  execution,  ac- 
kn(j\vl('d<:in('nt  and  registration;  the  name  of  the  olliccr  fak- 
ing the  acknowledgment,  arul  the  initials  of  each  grantor, 

'  Soe  apiwndix  by  M.  II.  Durt^in,  to  Curtw'  wull  knuwii  "  American 
Conveyancor."     (lioaton,  IbTl.) 


G5S 


APPENDIX. 


where  there  are  more  thcin  one,  to  designate  his  separate  con- 
veyances. Following  this  comes  the  book  and  J^age  of  the 
record  in  two  narrow  columns.  In  the  next  column  are 
inserted  the  names  of  the  grantees;  consideration;  notes  of 
dower  and  homestead;  words  of  grant;  covenants;  and  men- 
tion of  formal  defects.  In  the  last,  or  right  hand  column, 
are  placed  the  descriptions;  notes  of  incumbrances;  condi- 
tions, recitals,  etc.  As  a  further  ex])lanation  an  example 
is  appended : 

Hiram  W.  Smith,  grantor  from  1823. 


1822  to  1835. 

None. 

1835-7. 

355 

210 

Wm.  Jackson. 

IMtg.  P  ,000,  2  yrs.     (Descrip- 
tion.)   Nov.  10,  1837.     Can- 
celed on  margin   by  Wm. 
Jackson. 

1838-9. 

None. 

1839. 

493 

121 

J.  L.  Woodman. 

A  certain  parcel  of  Id.  in  Stan- 

Nov. 20. 

$5,000. 

ford,  on  sly.  side  of  Rush  St. 

"     21. 

contg.  15  acs.  m.  or  1. 

"     21. 

Emma,  rel.  d. 

Beg.  at  S.  W.  cor.  on  Rush  St. 

Juo.  Smith 

g.  g.  b.  s.  &  conv. 

at  Id.  of  0.  S.  Newell,  the. 

J.  F. 

Wty.  free. 

rung.  N.  E.   by   sd.    st.    as 
fence  now  stands  50  rds.  9 
Iks.  to  a  stone  standing  by 
Id.  of  J.  Smitli,  the.  rung. 
N.  90°  E.  15  rds.,  etc. 
Reservg.  privilege  to  pass,  etc. 

The  next  conveyance  by  J.  L.  Woodman  would  ])lace  his 
name  at  the  head  of  the  page  as  grantor,  and  the  procedure 
would  be  the  same  until  he  finally  parted  with  title.  All 
the  conveyances  made  by  grantor  during  the  period  in  which 
he  held  title  are  noted,  whether  they  include  the  premises 
in  question  or  not,  but  if  of  other  land,  reference  only  is 
made  to  them,  as  "  Id.  in  Charlestown;"  nor  is  any  mention 
made  of  defects,  dates,  etc. 

ANALYSIS    OF   ABSTRACT. 

Mr.  Lee,  in  the  appendix  to  his  valuable  work  on  abstracts, 
gives  the  following  form  of  an  analysis  of  an  abstract,  Avhich 
may  be  of  service  to  American  practitioners  by  way  of  sug- 
gestion. 


APPENDIX. 


G59 


ANALYSIS  OP  ABSTRACT. 


Estate  in  Foxbury, 

County  of  Devon. 


1  manor. 

1  capital  messuage  and  cottapre. 

100  acres  of  land  and  riirlit  of  common. 


Observations. 


Date,  Parties,  Tarcels. 


Uses.  Trusts,  Limitations,  etc. 


Terms,  Incum- 
braiues. 


1773.    March  1. 
John  Jones  conveys 

Manor 

House I  To  Abraham    Ashford   in 

300  acres [      fee 

Common  right. . .  J 

Use  of  Ann  Downos  for  life 

—  as  Henry  Smith  shall 
appoint. 

—  of  Henry  Smith  in  fee. 


Certificates  of 
the  baptisms 
or  births  of 
the  children 
of  Mr.  and 
!Mrs.  Smith, 
should  be 
pr  0  d  u  c  e  d, 
and  a  decla- 
ration under 
the  Aboli- 
tion of  Oaths 
Act  nia^e  by 
a  i)er8on  re- 
lated to  or 
acfjuai  nt  ed 
with  the  fam- 
ily, stating 
tbat  there 
are  but  fourjohn 
childr.-n  of 
the  mar- 
riage, nhould 
\xi  siipplicil; 
and  if  Mrs. 
Smith  be 
now  dead,  a 
certificiitc  of 
her  burial 
should 
furniiihi:!! 


1790.     May  8. 

Henry  Smith  ap- 
points same  prem- 
ises to 


UseofH.  Tliompson  1,000 

years. 
—  of  John  Young  in  fee. 

I  Trust  for  A.  S.  for  life. 
—  for  H.  Smith's  chil- 
dieu  in  fee. 


Jan.  6. 
Young, 


H06 

Ann 
Smith,    and    fou 
childrtn,     release 
bame  preiuiiscs 


n 


to  Richard  Jenkins  in  fee. 


Subject  to  1.000  years,  and 
right  of  Mrs.  Smith  to 
live  iu  cottage  for  life 


1,000  years  in 
H.  Tliomp- 
son to  raise 
2,0(^0  I.  for 
portions. 


660 


APPENDIX. 


Observations. 

Dale,  Parlies,  Parcels. 

Uses.  Trusts,  Llmitalloiis,  etc. 

'lenns,   Iiuiiui- 
l)ruiices. 

1815.    June  18. 

Proved  20th  July,  1816. 

Richard  Jenkins     ] 

* 

wills — 

to  J.  Morris  and  E.  Simp- 

Manor, house,  cot- 

son. 

tage,  100  acres  and 

2,0007.  paid 

commou  right,       ^ 

oir.  Ttrin  of 

1,000   years. 

Trust  for  testator's  wife 

Assigned  to 

for  life,  remainder. 

Oliver  Pear- 

 for  testator's  cliildi'en 

son,  in  trust 

in  fee. 

to  attend  for 
parties  enti- 

NoTK.—200  acres 

tled   under 

sold  by  Mr.  Jenkins 

J  e  n  k  ins' 

during  his  life. 

vviU. 

LAND   MEASURES. 

In  the  preparation,  as  well  as  in  the  examination  of  ab- 
stracts of  title,  numerous  occasions  will  arise  for  the  com- 
putation of  areas,  the  measurement  of  lines  and  distances, 
and  other  matters  calling  for  calculations  based  upon  the 
different  methods  now  or  formerly  in  vogue  for  land  par- 
celing. To  assist  the  practitioner  by  affording  a  ready  ref- 
erence to  the  standard  tables  of  land  measurement,  the 
following  are  inserted. 

The  measures  of  extension  sanctioned  by  law  in  the 
United  States,  conform  to  the  standard  established  by  the 
English  government,  which  is  based  upon  the  law  of  nature, 
that  the  force  of  gravity  is  constant  at  the  same  point  of  the 
eariKs  surface  and  consequently,  that  the  length  of  a  pend- 
ulum which  oscillates  a  certain  number  of  times,  in  a 
given  period,  is  also  constant.  Had  this  unit  been  known 
before  the  adoption  and  use  of  a  system  of  measures,  it 
would  have  formed  the  natural  unit  for  division,  and  been 
the  natural  base  of  the  system  of  linear  measure.  But  the 
foot  and  inch  had  long  been  used  as  units  of  linear  meas- 
ure; and  hence,  the  length  of  the  pendulum,  the  new  and 
invariable  standard,  was  expressed  in  terms  of  the  known 
units,  and  found  to  be  equal  to  39.1393  inches.     The  new 


APPENDIX.  661 

unit  was  therefore  declared  invariable — to  contain  39.1393 
equal  parts,  each  of  which  was  called  an  inch;  12  of  these 
parts  were  declared  by  act  of  Parliament  to  be  a  standard 
foot,  and  36  of  them,  an  Imperial  yard.  The  Imperial 
yard  and  the  standard  foot  are  marked  upon  a  brass  bar,  at 
the  temperature  of  62^°,  and  these  are  the  linear  measures 
from  which  those  in  general  use  in  this  country  are  taken. 

TABLE  OF  U>T:aR  MEASURE. 

12  inches  (in.)  make  1  foot,  marked ft. 

3  feet  "    1  yard,      "       yd. 

5i  yd.,  or  16}  ft.,  "    1  rod,         "       rd. 

40  rods  "     1  furlong,  marked fur. 

8  furlongs,  or  320  rd. ,  "1  statute  mile,  "        mi. 

U^^T  EQUIVALENTS. 

ft  In. 

yd.               1    =-  13 

rd.                      1   =          3    =.  36 

ftar.                   1  =                  5i  =         16i  =  198 

m!.                   1  =             40  =               220    =       660    =  7920 

1  =              8  =           320  =            1760   =     5280    =  63360 

TABLE  OF  SQUARE  MEASURE. 

144    square  inches  (sq.  in.)  make  1  square  foot,  marked sq.  ft. 

9    sfjuare  feet  "       1  square  yard,       "        sq.  yd. 

30i  square  yards  "       1  square  rod,        "       sq.  rd. 

40   sfiuarerods  "      1  rood,  "      R. 

4    roods  "       1  acre,  "       A . 

&40    acres  "       1  square  mile,       •'       S(j.   mi. 

UNIT  EQUIVALENTS. 

6q.  ft.  sq.  In. 

Eq.  vd.  1  -  144 

sq.rd.  1-  9-  12aO 

B.        1  —  80i  —  ■    272J  —  89204 

4.     1—     40—  1210—  10S90—  1  .-)(•)«  1(50 

gq.  ml.   1  —   4  —     160  —  4.H-10  —  4:ir)0()  —  6272(UO 

1—  640—2560—  102400—  3097000-  27878400—  401148UG0O 

SCKVEYOU'S   MEASURE. 

In  the  primary  division  of  the  public  lands,  and  usually 
in  all  subse(juent  sul)divisions  of  considerable  area,  the 
mca-surements  arc  made  with  what  is  calk'd  a  (Juntrr's 
chain,  which  consists  of  a  metal  chain  60  feet  lon^^  and  com- 


662  APPENDIX. 

]ioscd  of  100  links.  The  chain  emph^yocl  by  the  frovern- 
ment  in  the  execution  of  the  public  surveys  is,  however, 
66.06  in  length.  The  object  in  adding  six-hundredths  of  a 
foot  to  the  66  feet  of  the  ordinary  chain  is  to  assure  thereby 
that  ij(j  feet  ■will  be  set  off  upon  the  earth's  surface  without 
the  application  of  a  greater  strain  than  about  twenty  pounds 
by  the  chainnien,  thus  providing  for  loss  by  vertical  curva- 
ture of  the  chain,  and  at  the  same  time  avoiding  the  uncer- 
tain results  attending  the  a])plication  of  strains  taxing  its 
elasticity. 

TABLE  OF  LINEAR  MEASURE. 

7.93  inches  (in.)    make  1  link 1. 

25       links  "      1  rod rd . 

4      rods,  or  G6  feet,  "      1  chain cli . 

80      chains  "      1  mile mi. 

UNIT  EQUIVALENTS. 

1.  In. 

rd.            1  =-  7.93 

ch.          1  =        25  =  198 

mi.          1  =1        4  =        100  =  792 

1         80=      320=       6000=  03360 

In  practice  rods  are  now  seldom  used,  distances  being 
taken  in  chains  and  links.  The  foregoing  table  is  used  in 
measuring  lines  and  distances;  in  the  computation  of  areas 
or  in  ascertaining  the  contents  of  land,  the  following  table 
is  employed : 

TABLE  OF  SQUARE  MEASURE. 

625  square  links  (sq.  1.)  make  1  pole, P. 

16  poles  "      1  square  chain, sq.  ch. 

10  square  chains  "      1  acre, A. 

640  acres  "      1  square  mile, sq.  mi. 

36  square  miles  (6  mi.  square)  "      1  township, Tp. 

UNIT  EQL^VALENTS. 

P-  sq  1. 

sq  ch.                        1  =  625 

A.                       1     =                 16  =  1000 

Fq.mi.                 1     =             10     =               160  =  100000 

Tp           1     =        640    =        6400     =        102400  =  640000(10 

1=     36    =     23040    =    230400    =      3086400  =  2304000000 

The  contents  of  land  are  usually  estimated  in  miles,  acres, 
and  hundredths. 


APPENDIX.  G03 

SPANISH-FRENCH    LAND   MEASIJKES. 

During  the  administration  of  the  Spanish-French  govern- 
ors, in  the  province  of  Louisiana,  the  granting  power  of  the 
royal  domain  was  freely  exercised,  and  the  grants  so  made 
lie  at  the  foundation  of  most  of  the  early  titles  in  the  States 
subsequently  formed  from  that  province. 

The  surveys  of  these  grants  are  found  in  many  places 
wrought  in  with  our  public  surveys,  presenting,  as  it  were, 
curious  mosaic  irregularities  in  striking  contrast  with  the 
simple  rectangular  sj^stem  adopted  by  the  national  govern- 
ment. They  illustrate,  in  a  forcible  manner,  the  peculiar 
agrarian  systems  of  the  governments  which  preceded  us,  in 
the  diversified,  irregular  forms  of  grants,  from  urban  in-lots, 
and  out-lots,  rural  tracts  of  inconsiderable  dimensions,  and 
from  thence  increasing  in  extent  to  7,056  arpens  or  a  league 
square,  the  "  arpen  "  of  Paris  being  the  standard  of  provin- 
cial measurement. 

The  following  is  a  comparative  statement  adopted  by  the 
surveyor  generars  office  at  St.  Louis,  Mo.,  of  the  land  meas- 
ures of  the  United  States,  and  the  French  measures  formerly 
used  in  the  province  of  Louisiana ; 


(jCA 


APPENDIX. 


Linear  Measure. 


Superficial  Measure. 


French United  States.  I 

Chains.  Links.' 

1  perch  equals 0.  2i».16(i 

2    0.  r)8.;]:« 

3 0.  87.5 

4         1.  Ui.Gfil 

5         1.  45.833 

6 1.  T5. 

7  2.  04.1fiG 

8       2.  33.333 

9 2.  62.5 

10  or  one  arpent  lineal.  .2.  91.066 

2  arpents .5.  83.333 

3 8.  75. 

4     11.  60.066 

5       14.  58,333 

6  17.  50. 

7       20.  41.666 

8  23.  33.333 

9   20.  25. 

10  29.   16.666 

100 291.  66.666 

1000 2916.  66.666 

Side  of  a  league  square 

84  arpents  equal 2.45  chains. 

Side  of  a  mile  square. 
27  arpents  equal 80  chains. 


French. 


United  States. 


Arpents.  Aores. 

1  equivalent  to 0.85  07 

2 1.70  14 

3 2.55  21 

4 3.10  28 

5 4.25  35 

6 5.10  43 

7 5.95  49 

8 6.80  56 

9 7.65  63 

10 8.50  69 

100 85.06  94 

1000 850.69  44 

10,000 8,506.94  44 

Arpents.  Perches.  Acres. 

1 17.551 1 

2 35.102 2 

3 52.653 3 

4 70.204 4 

5 87.755 5 

7 05.306 -...6 

8 22.857 7 

9 40.804.- 8 

10 57.9.59 9 

11..- 75.510 10 

117 55.102 100 

1.175 51.020 1000 

11.755 10.204 10,000 

Square  league. 
A    league  square    contains  7,056 
arpents  or  6,002.50  acres. 
Square  mile. 
725  arpents  32.64  perches  equal  640 
acres. 


SPANISH-MEXICAN  LAND  MEASURES. 

By  the  treaty  of  Guadalupe  Hidalgo,  ratified  May  30, 
1848,  and  the  treaty  commonly  known  as  the  Gadsden  Pur- 
chase, ratified  June  30,  1854,  the  Mexican  Eepublic  ceded 
to  the  United  States  the  territory  embraced  within  the  pres- 
ent limits  of  the  States  of  California  and  Nevada  and  the 
territories  of  Arizonarand  Utah,  a  part  of  the  State  of  Colo- 
rado, and  parts  of  the  territories  of  Ncav  Mexico  and  Wyo- 
mino-.  Scattered  over  this  district  there  exist  many  ancient 
Spanish-Mexican  titles,  municipal  and  rural,  which,  under 
the  terms  of  the  treaties,  are  recognized  and  protected  by  the 
government.      These  claims  and  grants  are  for   ii-regular 


APPENDIX. 


G65 


shaped  tracts,  illy  defined,  and  bounded  mainly  by  natural 
objects.  They  Avere  made  for  agricidture,  mining,  stock- 
raising,  and  colonization,  and  in  all  sizes,  from  a  village  lot 
to  a  million-acre  tract.  Upon  confirmation  it  is  necessary 
to  have  these  titles  traced  out  and  fixed,  by  survey  or  re-sur- 
vey, according  to  tlie  peculiarities  of  the  sA'stem  of  the  gov- 
ernment from  which  they  originated,  and  incidentally  they 
must  frequently  be  referred  to  in  subsequent  conveyances 
and  subdivisions. 

The  Surveyor  General  of  California,  in  a  report  made  in 
1S51,  states  that  all  grants  in  California,  made  either  by  the 
Spanish  government,  or  that  of  Mexico, refer  to  the  "vara" 
of  Mexico  as  the  measure  of  length,  and  that  by  common 
consent,  in  California,  that  measure  is  considered  as  exactly 
equivalent  to  thirty-three  American  inches.'  It  would  seem 
that  another  length  is  given  to  the  "  vara "  by  Mr.  Alex- 
ander,' who  states  its  length  to  be  equal  to  92.741  of  the 
American  yard.  In  practice,  however,  the  General  Land 
Office  has  sanctioned  the  recognition,  in  California,  of  the 
Mexican  vara  as  being  equivalent  to  thirty-three  American 
inches. 

The  following  is  a  table  of  land  measures  adopted  by  the 
Mexican  firovernment : ' 


Names  of  the  measures. 


Siilode  guiia'lo  nioyer 

Critidero  ile  ganudo  nicjyur 

t-ltli)  'Ic  Kimado  mt'iior 

Criadero  de  K"'iadi)  mt-iior 

Cabaikria  dc  tierra 


Modia  [cftballeria 

CuhfU)  cuballeria  o  Puerto  <le 
tierra - 


Fcn'-ga  de  nombradtiro  dc  ipbIj! 

Knia    pnra  cii.sii 

Kund'i  U'KhI  piini  piii-hlo't... 


Figures  of  the 
measures. 


■rqUlllc  

<lo 

d-. 

do 

KlKlit-iiiigiodiiar- 

alleloKruii). 
-'quare 


KlKht-aniiled  par- 
alk-luKnun. 

do... 

-ijiiiire- 

do 


.<XX) 
l.;>00 
i.:«::u 

.KM 
552 
552 
876 

I  '200 


i. 

n 

5  00 ) 

•1.:**) 

■A  3X1^, 

\.m,% 

bb'l 

270 

IRI 

.'■0 

l.VOiJ 


fHKXiOl 
•jriO.OK) 
.111. lilt 

80f704 
15-',35> 

l.4-»0.<0i) 


•J1.0J3 
10,-.'55 
18.23-2 

1 

1^. 


2  I'M 


'  Rep.  Genl.  Land  Offlce,  18.54. 
*  Dictionary     of     Weights    Jiinl 
MeaHun-H. 
•TranslakHl   from     the    "Onle- 


nanzaH  de  Tierros  y  Agnas  "  by  Gal- 
vati,  Ivl.  IHll;  and  »<•<>  Kx.  I  Km*. 
No.  17,  Iht  Sctision,  Ulht  Congrchis, 
House. 


GGG  ArrENnix. 

Tlic  Mexican  vara  is  the  unit  of  all  the  measures  of 
length,  the  pattern  and  size  of  Avhich  are  taken  from  the  Cas- 
tilian  vara  of  the  mark  of  T>ur<;-os,  and  is  the  legal  vara  used 
in  the  Mexican  republic.  Fifty  I\rcxican  varas  make  a  meas- 
ure which  is  called  cordel,  which  instrument  is  used  in  meas- 
uring lands. 

The  legal  league  contains  100  cordels,  or  5,000  varas, 
■which  is  found  by  multi])lying  by  100  the  50  varas  contained 
in  a  cordel.  The  league  is  divided  into  two  halves  and  four 
(juarters,  this  being  the  only  division  made  of  it.  Half  a 
league  contains  2,500  varas,  and  a  quarter  of  a  league  1,250 
varas.  Anciently,  the  Mexican  league  was  divided  into  tliree 
miles,  the  mile  into  a  thousand  paces  of  Solomon,  and  one 
of  these  paces  into  five-thirds  of  a  Mexican  vara;  conse- 
quently the  league  had  3,000  paces  of  Solomon.  Tliis  divis- 
ion is  recognized  in  legal  affairs,  but  has  l)een  a  veiy  long 
time  in  disuse — the  same  as  the  pace  of  Solomon,  Avhich  in 
those  days  was  called  vara,  and  was  used  for  measuring  lands. 
The  mark  was  equivalent  to  two  varas  and  seven-eighths — 
that  is,  eight  marks  containing  twenty-three  varas — and  was 
used  for  measurins;  lands. 


APPENDIX. 


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It  will  be  ol)served  that  the  Texan  vara  is  slifjhtly  lon<:;cr 
than  tiie  stamlunl  recognized  in  California  anil  adopted  by 
the  General  Land  Odice. 


IKDEX. 


[the  refeeesces  are  to  the  pages.] 

ABANDON^IENT, 

considered  as  a  method  of  acquiring  title,  54. 

of  homestead,  defeats  riglit  of  exemption,  21. 
ABBREVIATIONS, 

may  be  used  to  advantage,  when,  105. 

may  destroy  abstract  as  evidence,  105. 
ABORIGINAL  TITLE, 

of  what  consisting,  54. 
ABSENCE, 

long  and  unexplained,  when  presumptive  evidence  of  death,  58G. 
ABSTRACTS, 

definition  of,  2. 

origin  and  early  use  of,  2. 

essential  matters  to  be  shown  in,  3. 

distinguished  from  examinations,  5. 

what  constitutes  to  be  merchantable,  6. 

liabiUt}'  for  erroneous  statements  in,  7. 

duty  of  furnishing  devolves  on  whom,  9. 

become  property  of  purchaser,  when,  11, 

compiled  from  official  sources  of  information,  74. 

from  private  indices,  93. 

formal  parts  of,  94. 

caption  of,  how  expressed,  94. 

arrangement  of,  98. 

of  instruments  and  proceedings  shown,  101. 

letter  i>r<'ss  cojiies  of,  100. 

conchiiling  certificate,  100. 

of  inc('i)tive  measures  under  U.  S.  land  laws,  133. 

of  entries  on  government  tract  Ixxiks,  135. 

of  receiver's  duplicate  receipt,  143. 

of  legislative  grants,  151. 

of  patents  frf>m  Unitwl  Stat^-s,  102. 

of  Hulxlivision  by  owner,  170. 

of  vacation  of  Hubdivisicjii  liy  owner,  179. 

of  dee«lH,  p.irts  U)  l»e  hIk.wii,  1H2,  23-1,  21L 

of  con>orato  conveyances.  279. 

(009) 


070  INDEX. 

ABSTRACTS.    Coniinned. 
of  power  of  attorney,  290. 
of  declaration  of  trust,  295. 
of  sheriff's  deed,  5K)3. 
of  master's  deed,  305. 
of  trustee's  deed,  311. 
of  administrator's  deed,  319. 
of  bankruptcy  proceedings,  334. 
of  land  contract,  345,  350. 
of  leases,  354. 
of  vacation  of  plat,  361. 
of  official  certificates,  3G4,  445,  50G,  507. 
of  party  wall  agi'eement,  367. 
of  affidavit,  370. 
of  mortgage,  383,  394,  404. 
of  wills,  441,  443. 
of  pi\)l)ate  proceedings,  449. 

of  court  proceedings,  466,  468,  477,  485,  507,  531,  539. 
of  probate  sales,  515. 
of  tax  sale  certificates,  564. 
of  tax  deed,  568. 
of  tax  title,  how  compiled,  571. 
of  proof  of  death,  589,  594. 
of  descent  in  probate,  594. 
of  adverse  titles,  5S7,  598. 
methods  of  perusal  of,  612. 
printed  copies  of  opinions  concerning,  641. 
analysis  of,  658. 
method  of  compiling  in  New  England,  657. 

ACCRETION  AND  RELICTION, 

what  constitutes,  48. 

title  acquired  by,  nature  of,  48. 

i-ule  for  measurement  of  lands  acquired  by,  49. 
ACKNOWLEDGMENT, 

office  and  effect  of,  206. 

how  shown  in  abstract,  208. 

if  defective,  effect  of,  224. 

what  constitutes  defects  of,  225. 

defects  of,  how  noted  in   abstract,  227, 

of  wife's  deed,  formalities  of,  206. 

of  coi-porate  conveyances,  280. 

by  attorney  in  fact,  how  shown,  287. 

of  sheriff's  deed  essential  to  validity,  301. 

ACTIONS, 

respecting  title  at  law  and  in  equity,  517,  520. 
for  divorce,  should  be  shown  when,  545. 


INDEX.  G71 


AD^riNISTRATOR, 

powers  of,  distinguished  from  executors,  316 

deeds  by,  how  made,  317. 

how  shown  in  abstract,  319. 

with  will  annexed,  powers  of,  320. 
ADMINISTRATION  OF  ESTATES, 

how  shown  in  abstract,  445,  449. 
ADOPTION, 

defined,  35. 

effect  of  in  descent  of  estates.  35,  579. 

proof  of  in  case  of  succession,  585. 
ADVERSE  CONVEYANCES, 

how  displaj-ed  in  abstract,  597. 
ADVERSE  POSSESSION, 

character  and  effect  of ,  599,  610. 

from  user  only,  604. 

under  color  of  title,  603. 

naked  occupancy  without  claim  is  not.  604. 

taking  of  successive  holdings  by,  605. 

constitutes  notice,  605. 

can  not  be  established  against  remainder-men,  607. 
or  reversioners,  607. 
or  persons  under  disability,  608. 
or  the  State,  609. 

proofs  to  support  title  by,  Oil. 
ADVERSE  SEIZIN, 

will  not  prevent  valid  conveyance  of  land,  253. 
ADVERSE  TITLE, 

general  characteristics  of,  596. 

those  shown  in  al)stract,  597,  598, 

who  may  acijuire,  606. 

proofs  to  supi)ort,  611. 
AFFIDAVITS, 

of  matters  in  pais,  are  required  when,  369. 

how  phown  in  abstract,  370. 

general  rwjuisites  and  BufTiciency  of,  870. 
AFI'INITY, 

what  is,  and  how  governed,  85. 
AFTER- A  (  (^U I  RED  E-STATF-S, 

wlnn  b(jund   by  li<n  of  judgnienta,  470. 

efTcct  of  inortgagea  uixm,  390. 
ACJREEMENTS, 

for  conveyance,  general  d<Htrini^  of,  841. 

for  conveyance  by  de<'d,  313,  315. 

for  conveyance  by  will,  351. 

for  d«M-d,  iK-rfonnunce  of,  3-17. 

for  party  wall,  effect  of,  860. 


y 


672  INDEX. 

AGRICULTl-TRAL  LANDS, 

wliat  K';;st's  may  be  made  of,  357. 
ALIENATION, 

of  land,  what  laws  govern,  28. 

of  the  homestead  only  efifectual  when,  21. 
ALDIONY, 

reqiures  notice  when  a  lien  on  land,  546. 
ALLEGIANCE, 

does  not  relate  to  title  or  imply  feudal  obligation,  15. 
AMBIGUITY, 

effect  of  and  how  treated,  216. 

in  deeds,  220. 

in  wills,  413. 
AMERICAN, 

method  of  compiling  abstract,  4. 

doctrines  with  respect  to  title,  14. 

Indian,  title  of,  how  extinguished,  54. 
ANALYSIS  OF  TITLE, 

utility  of  in  examinations,  624. 

how  constructed,  G25,  027. 

how  made  in  England,  658. 
ANCESTOR, 

who  is  to  be  considered,  572. 

covenants  of,  bind  heir  when,  581. 

debts  of,  affect  heir  how,  581. 

death  of,  must  be  proved,  586. 

title  of,  descends  to  heir  by  operation  of  law,  573. 
ANCESTRAL  ESTATES, 

by  what  rule  distributed.  579. 
ANCIENT  DEEDS, 

what  are,  212. 

require  no  proof  of  execution,  212. 
APPEARANCE, 

effect  of  in  legal  proceedings,  527. 
ARRANGEMENT, 

of  abstract,  suggestions  for,  98. 
ASSESSORS'  PLATS, 

for  what  pui-pose  made  and  how  shown,  556. 
ASSIGNEE, 

of  military  warrants  and  land  scrip,  125, 

of  land  contract,  rights  of,  346. 

of  lease,  acquires  what  interest,  357. 

of  mortgage,  rights  of,  398. 

in  bankniptcy,  deed  of,  336. 
ASSIGNMENT, 

as  a  mode  of  conveyance,  244,  329. 

of  military  waiTant,  when  permitted,  135. 


INDEX.  673 


ASSIGNMENT.     Continued. 
for  benefit  of  creditors,  326. 
voluntary,  how  made.  327. 
construction  and  effect  of,  331. 
by  register  in  bankruptcy,  335. 
of  arguments  for  convej-ance,  346. 
of  lease,  how  made,  357. 
of  mortgage,  effect  of,  398,  399,  400. 
of  mechanic's  lien,  effect  of,  462. 
of  certificate  of  sale  under  execution,  508, 

attach:ment, 

general  doctrine  of,  4G3,  467. 

formal  requisites  of,  468. 

how  sliown  in  abstract,  468. 
ATTESTATION, 

by  subscribing  witnesses  to  deeds,  200. 
ATTORNEY, 

power  of,  how  shown,  290. 

opinion  of  title  by,  645,  049. 

liability  of  for  erroneous  opinion,  653. 
ATTORNEY  IN  FACT, 

conveyance  by,  how  made,  286. 

how  shown  in  abstract,  287. 

purport  and  extent  of  powers  of,  288. 

revocation  of  authority  of,  291. 

substitution  of,  291. 
AVULSION, 

what  is,  and  by  what  laws  governed,  50. 

BANKRUPT  CTk', 

jurisdiction  and  practice  in,  332,  333. 

nature  and  effect  of.  333. 

proceedings  in,  how  shown  in  abstract,  334,  335. 

register's  assignment  in,  330. 

deed  of  assignee  in,  337. 

effect  of  discharge  in,  339. 
BIRTH, 

of  heir,  affects  tenant  by  curtesy,  22. 

proof  of,  necessary  to  establish  claim  of  heir,  30,  500. 
BONDS. 

for  conveyance,  how  shown,  350. 

of  officials  are  liens  on  land,  wlun,  450. 
BOUNDARIES, 

of  lands  adjoining  navigable  watfrs,  00. 

by  lines  of  the  public  surveyB,  107. 

CANONS  OF  DESCENT, 
of  wliat  ccmiiiiting,  81. 
48 


674  INDEX. 

CAPTION, 

of  abstracts  and  examinations,  95. 
of  opinions  of  title,  645,  049. 
CAVEAT  E.M1^0R, 

doctrine  of  applies  to  purchases  at  execution  sale,  492. 
and  from  adminLstrator,  'S20. 
CERTIFICATES, 

otlicial,  by  custodian  of  records,  76,  363. 
appended  to  abstract  by  examiner,  107. 
how  sliown  in  abstract,  364. 
of  proof  of  will,  445. 
of  publisher,  notice  of  sale,  497. 
of  sale  by  officer,  how  shown,  505,  507. 
of  sale,  assignment  of,  508. 
of  publication  of  summons,  529. 
of  sale  for  non-paj-ment  of  taxes,  563. 
of  title,  what  are  and  utility  of,  646. 
CHAIN  OF  TITLE, 

preliminary  sketch  of,   93, 
analytical,  or  examination  of  abstract,  625, 
as  arranged  in  abstract,  99. 
CHANCERY  COURTS, 
jurisdiction  of,  519. 

proceedings  of,  how  shown,   507,  520. 
notice  afforded  by  records  of,  522. 
CHANCERY  PROCEEDINGS, 
method  of  indexing,  88. 
authority  and  jurisdiction  in,  519. 
requiring  notice  in  absti-act,  520. 
jurisdiction  the  great  essential  in,  521. 
notice  afforded  by  record  of,  522, 
how  instituted  and  conducted,  523. 
how  shown  in  abstract,  531,  539,  547. 
CHARTERS, 

of  corporations,  effect  of  on  titles,  276. 
CHILDREN, 

is  word  of  purchase  not  limitation,  193. 
construed  as  synonymous  with  issue,  416. 
limitation  of  estate  to,  effect  of,  417. 
does  not  include  grandchildren,  419, 
CHURCH  RECORDS, 

may  be  resorted  to  for  evidence,  77. 
CLASS, 

devise  to,  effect  of,  423. 
CLASSIFICATION  OF  TITLE, 
i31ackstone's  distinctions,  13. 
by  courts  of  etjuity,  13. 


INDEX.  675 


CLOUDS  UPON  TITLE, 

what  are,  and  effect  of,  636.* 
COLOK  OF  TITLE, 

•what  constitutes,  27. 

entry  under  an  adverse  possession,  601,  603. 
COMPILATION, 

of  abstract,  English  method,  3. 

American  method,  4,  91. 

from  what  sources  of  information,  62,  93. 

from  official  indices,  what  should  be  examined,  74. 

making  the  chain,  93. 

from  private  indices,  93. 

insertion  of  notes  in,  104. 

abbreviation,  when  permissible,  105. 

of  initial  statements,  135. 

of  abstract  books,  81. 
CONDITIONS, 

annexed  to  grants,  effect  of,  199,  251. 

will  be  invalid  when,  251. 

how  shown  in  abstract,  253. 

in  mortgages,  effect  of,  386. 

devise  upon,  effect  of,  428. 
CONFIRMATION, 

nature  and  characteristics  of,  52. 

as  basis  of  title  in  foreign  gi-ants,  53. 

how  shown  in  abstract,  140. 

of  judicial  sales,  effect  of,  503,  504. 
CONFLICT  OF  LAWS, 

in  alienation  and  descent,  28. 

in  matters  of  assignment  and  insolvency,  331. 
CONFISCATION, 

nature  and  characteristics  of,  59. 
CONGRESSIONAL  GRANTS, 

nature  and  effect  of,  147. 

construction  of,  149. 

how  shown  in  abstract,  151. 
CONSANGUINITY, 

defined,  32. 

computation  of  dogrocs  of,  33. 

table  of  degrees  of,  according  to  the  civil  law,  34. 

dLstingtiishofl  from  affinity,  35. 

HB  afff<t«  d  by  Btatutt-H  of  adoption,  35. 
CONSIDERATION, 

aa  exi)rcHSc«l  in  deeds,  effect  of,  189. 

effect  of.  1^9. 
CONSTHi:(TIVE  Nf/TICE, 

gvneral  du<-triruii  of,  67. 


G7G  INDEX. 


CONSTRUCTIVE  NOTICE.     Cnniiintcd. 

afTorded  by  public  records,  G8,  72. 

by  recoi'ds,  i-igidly  construed,  G9. 

distiuguisbed  from  actual  notice,  70. 

not  impaired  by  destruction  of  records,  73. 
CONSTRUCTIVE  POSSESSION, 

distinsaiisbed  from  actual,  G03. 

of  lands  held  adversely,  603, 
CONTINGENT  REVERSION, 

under  wills,  how  created,  430. 
CONTINGENT  REMAINDERS, 

under  wills,  how  construed,  429. 
CONTRACTS  FOR  CONVEYANCE, 

general  remarks  concerning,  341. 

relation  of  parties  under,  342. 

effect  and  operation  of,  342. 

nature  and  formal  requisites  of,  343,  345. 

how  affected  by  recording  acts,  344. 

construction  of,  344. 

how  shown  hi  abstract,  345. 

performance  of  sufhciency  of  deed  and  title,  347. 

effect  of  assignment  of,  346. 

effect  on  title  when  forfeited,  349. 

in  form  of  bond,  effect  of,  350. 

by  will,  validity  of,  351. 
CONTINUATIONS, 

of  abstracts,  caption  of,  96. 

CONVEYANCES, 

by  hell's,  what  facts  jurisdictional,  37. 

should  be  rejected,  when,  38,  285. 

by  pre-emptioners  before  entry,  119. 

of  homestead  claim  before  maturity,  124. 

by  way  of  legislative  grant,  effect  of,  147. 

from  the  U.  S.  government,  153. 

from  the  state,  162. 

between  mdividuals,  182,  229. 

derived  from  the  common  law,  241. 

of  future  interests  and  estates,  245. 

of  special  interests  and  qualified  estates,  247. 

restrictive  or  conditional  in  character,  251. 

of  lands  held  in  adverse  possession  of  another,  253. 

in  fraud  of  creditors,  254. 

subject  to  incumbrance,  254. 

intended  fur  man-iage  settlement,  260. 

to  husband  and  wife,  effect  of,  261. 

between  husband  and  wife,  263. 


INDEX. 

CONVEYANCES.     Con  finned. 

by  married  women,  '264,  266. 

of  lands  lield  in  common,  269, 

to  effect  partition,  270. 

of  partnei-sliip  lands,  271. 

by  or  to  corporations,  273,  277,  273. 

post  obit,  effect  of,  286. 

by  delegated  autlioi-ity,  286. 

in  trust,  for  what  purposes  permitted,  293. 

made  in  official  character,  2i)7. 

by  trustees  of  legal  estate,  307,  309.        * 

by  mortgagees,  314. 

by  executors  ;md  administrators,  316. 

by  guardians  and  conservators,  321. 

by  way  of  voluntary  assignment,  326. 

tlu-ough  bankruptcy  proceedings,  333. 

agreemants  for,  nature  and  requisites,  341. 

bj-  will,  agreements  for,  331. 

intended  as  secm-ity  only,  effect  of,  379. 

by  way  of  devise,  407. 

how  affected  by  liens  and  incumbrances,  452. 
by  lis  j)endcns  and  attacliment,  463. 
by  judgments  and  decrees,  470. 

resulting  from  judicial  and  execution  sales,  490. 

resulting  from  tax  sales,  551. 

of  advei*se  intex'ests  and  estates,  597. 
COPARCENERS, 

wlio  are,  and  by  what  rules  governed,  580. 
COPIES, 

of  abstract  sliould  be  presei-^'cd  by  examiner,  106. 

printed,  of  abstracts,  value  of,  041. 
CORPORATIONS, 

I'ight  of,  to  a'-quire,  hold  and  transmit.  273,  276. 

as  affected  by  statutes  of  mortmaui,  275. 

conveyances  by  and  to,  277,  278. 

execution  of  deeds  by,  280. 

municipal,  may  hold  land  when,  277, 
COVENANTS, 

claKsificd  and  diKtingm'shed,  201. 

oiieration  and  effect  of,  202. 

defects  of  form  or  substance  in,  222. 

opiTate  I)y  ewtoppf-I,  when,  43. 

not  implied  in  oflicial  deedij,  299. 

in  leasi-H,  effect  of,  355. 

iiiijilieil  in  leases,  wiiat  are,  350. 

iii  niorlgag*^,  effect  of,  385,  380. 


078  INDEX. 

COVENANTS.     Continued. 

elTect  of,  in  party  wall  agreement,  300. 

of  ancestor,  affect  heir  how,  581. 
CREDITOltS, 

assignment  for  benefit  of,  320. 

lions  of,  on  decedent's  real  estate,  582. 
CURTESY, 

tenancy  by  in  the  United  States,  24. 

DATES, 

of  deed  not  essential,  187. 

of  registration  should  be  shown,  188. 

dispai-ities  of,  how  bhown,  219. 
DEATH, 

proof  of  essential  to  rights  of  heir,  37,  586. 

how  6ho^vn  in  case  of  succession,  586. 

how  shown  in  abstract,  589. 

as  shown  by  proceedings  in  probate,  589. 

affects  sale  on  execution  how,  498. 
DEBTS, 

are  a  charge  on  land,  when,  430. 

of  ancestor,  liabiUty  of  hen-  for  payment  of,  581. 

of  testator,  liability  of  devisee  for,  437. 

devises  for  payment  of,  when  regai-ded  as  money,  435. 
DECLARATION  OF  TRUST, 

how  made  and  shown,  294. 
DECREES, 

defined  and  distinguished,  470,  480. 

operation  and  effect  of,  481. 

rendered  on  constiuctive  notice,  482. 

lien  of,  483. 

formal  requisites  of,  483. 

how  shown  in  abstract,  485. 

eiTors  and  defects  in,  how  treated,  485. 

rendered  in  foreign  jm-isdiction,  489. 
DEDICATION, 

consists  of  what,  51. 

at  common  law  and  under  statute,  52. 

by  plat,  effect  of,  179. 

by  deed,  form  and  effect  of,  256. 
DEED, 

title  by,  what  is,  40. 
DEEDS, 

operative  parts  of  to  be  considerel,  182. 

names  of  pai-ties  in,  183. 

necessity  and  effect  of  consideration  for,  189. 

special  words  of  limitation,  purchase,  etc.,  191,  193. 

description  of  property  in,  194. 


INDEX.  070 


DEEDS.     Covtivnecl 

special  recitals  of,  19G. 

exceptions,  conditions,  etc.,  197.  199. 

facts  of  execution  considered,  203,  206. 

delivery  of,  necessity  for,  210. 

operation  and  effect  of  ancient  deeds,  212. 

stamps,  213. 

erroneous  recitals  in,  how  shown,  216. 

misdescription  of  property,  220. 

defective  execution  of,  224. 

classified  and  distinguished,  229. 

liow  shown  in  abstract,  234. 

statutory  forms  of,  240,  302. 

common  law  forms  of,  241. 

of  qualified  estates,  247. 

by  way  of  convej'ance  in  future,  245. 

restrictive  amd  conditional  clauses  in,  251. 

dedication  by,  256. 

particular  classes  of,  by  individuals,  260. 

to  effect  a  partition,  270. 

of  corporations,  273. 

by  heii-s  at  law,  effect  of,  87,  285. 

by  attorney  in  fact,  287. 

by  sheriff,  on  execution,  299. 

by  master,  commissioners,  or  referees,  304. 

by  trustees,  310. 

by  mortgagees,  314. 

by  executors  and  administrators,  316. 

by  guardians  and  conservators,  321. 

of  volimtary  assignment,  327. 

by  assignee  in  bankrupt<;y,  336. 

agreement  for,  341. 

of  vacation  of  plat,  361. 

aljsolut^',  will  he  treated  ns  mortgage,  379. 

of  tiTLst  in  nature  of  mortgage,  393. 

issued  on  tax  sales,  551,  508. 

shown  adversely,  596. 
DEED  POLL, 

define<l  and  distinguished,  230. 
DEUItEP>>. 

of  consanguinity,  how  computed,  32. 
DELIVERY, 

of  U.  S.  pat<'nts,  not  ess<iiti;il,  151. 

of  d<H-<lM,  Is  i-wcntial  to  transfer  title,  210. 

prcHuiiiption  of  from  recording,  211. 
DP-St.E.ST, 

title  by,  defined,  80,  572. 


^l^0  INDEX. 

DESCENT.     Continued. 

by  wliat  laws  governed,  28,  576. 

rules  of  in  the  United  States,  31,  576, 

operation  and  incidents  of  title  by,  573. 

who  may  take  by,  577. 

what  property  passes  by,  581. 

how  alfected  by  ancestral  covenants,  581. 

how  affected  by  creditors'  liens,  583. 

may  be  defeat<!d  by  etjuitable  conversion,  583. 

validity  of,  how  established,  591. 

how  shown  in  abstract,  592,  593. 
DESCRIPTION  OF  PROPERTY, 

sufficiency  and  construction  of,  194.^ 

unccrtamty  and  error  in,  how  shown,  220. 
DESERT  I^iND  ACT, 

entities  of  public  land  under,  liW. 
DESTRUCTION  OF  RECORD, 

does  not  hupair  constructive  notice  of  same,  73. 
DEVISE, 

title  by,  what  is,  40,  408,  409. 

operation  and  effect  of,  409. 

rules  of  construction  of,  411,  413,  418,  422. 

affected  how,  by  words  of  purchase  and  limitation,  415. 

rules  in  Shelly's  case  applied  to,  417. 

of  real  estate,  what  words  are  necessary,  420. 

to  a  class,  effect  of,  423. 

with  power  of  disposition,  construction  of,  423. 

of  indeterminate  character,  how  construed,  427. 

on  condition  precedent,  effect  of,  428. 

with  remainder  over,  429. 

to  married  woman,  430. 

to  executors  in  trust,  431. 

to  beneficiary  by  description  only,  432. 

with  precatory  words  annexed,  effect  of,  433. 

with  suspension  of  power  of  alienation,  434. 

will  lapse  when,  435. 

for  the  payment  of  debta,  435. 

subject  to  payment  of  debts,  effect  of,  436. 

will  work  equitable  conversion,  when,  437, 

of  the  residuum,  effect  of,  438. 

of  the  income  of  realty,  effect  of,  423. 
DEVISEE, 

takes  by  descent,  when,  414. 

nature  of  title  acquii-ed  by,  408. 
DISABILITY, 

persons  under,  exceptions  in  favor  of,  603. 


tN'DEX.  CSl 


DISCHARGE. 

in  bankruptcy,  how  shown,  339. 

of  mortgage,  401.  403,  404. 
DISPOSAL  OF  PUBLIC  LANDS, 

effected  by  what  systom,  111. 

by  public  sale,  113. 

by  private  entry,  113. 
DI\TSIONS, 

of  the  public  domain,  1G6. 
DIVORCE, 

effect  of  on  titles,  545. 

procee  lings  in.  how  shown  in  abstract,  547. 
DOCUMENT  NUMBER. 

index  of,  how  kept.  83. 
DONATION  ENTRIES, 

of  public  lands,  how  effected,  121. 
DOWER, 

definition  of,  23. 

how  conveyed  or  barred.  23. 

proceedings  for,  how  shown  in  abstract,  544. 
DUPLICATES, 

how  shown  in  abstract.  253. 

EASEMENTS  AND  SERVITUDES, 

defined,  24. 

how  acquired  or  lost,  25,  3G5. 

distinguished  from  license,  26. 

wlien  incjuiries  should  be  made  with  regard  to,  040. 
EJECTMENT, 

effect  of  judgment  in,  535. 
EMINENT  DOMAIN, 

nature  of  the  right,  50.  58,  548. 

character  of  title  actjuirtd  by,  57, 

actions  in  exercise  of,  548. 

matters  to  be  noticed  in  abbtract  of,  549. 
ENGLISH  METHODS, 

of  compiling  abstract,  3. 
ENTAIL, 

to  what  extent  permitted,  417. 
EQUITY, 

of  re<lemption,  what  is,  374. 

will  tre.'it  deed  an  inortgiige,  wlion,  379, 
EQUITABLE  CONVEH.SION. 

wliat  in,  and  how  effecUHl,  437. 

may  <lcfeat  Bucci-K'iion  of  lieir  wln-n,  583. 
liQUITABLK  MOKTGAflh-S, 

grniTiil  d<x-trini-H  n-Hpe<ting,  379. 

deed.-i  in  furm  may  be  dt-creed,  3y0. 


0S2  INDEX. 

ERROR. 

liability  of  oxnminor  for,  7. 

in  deeds  and  other  instruments,  215. 

of  description,  in  deeds,  220. 
and  mortgages,  384. 

in  opinion,  liability  of  counsel  for,  053. 
ESCHEAT, 

origin  and  former  nature  of,  58. 

nature  of  at  present  time,  59. 
ESTATE, 

distinguished  from  title,  12. 

as  affected  by  uses  and  trusts,  18. 

by  exercise  of  powers,  20. 

by  entirety,  how  created,  261. 

in  common,  how  held,  2G9. 
ESTATES, 

under  allodial  titles,  16. 

under  existing  laws,  17. 
ESSENTIALS, 

of  absti-act  of  title,  3. 
ESTOPPEL, 

defined  and  distinguished,  41. 

elements  of,  41. 

classification  of,  technical,  42. 

etjuitable,  44. 

does  not  affect  sovereign  power,  45. 

applies  to  mortgages,  376. 

of  a  judgment,  extends  to  what,  42. 

by  deed  is  raised  in  wh.at  manner,  43. 
EXAMINER, 

necessary  qualifications  of,  6. 

is  liable  for  erroneous  certificate,  when.  7 

conditions  necessary  to  fix  liability  of,  8. 

duty  of,  in  expositions  of  title,  8. 
EXAMINER'S  NOTES, 

should  be  inserted  when,  104. 
EXAMINATION, 

of  title,  distinguished  from  abstract,  5 

liability  for  error  in,  7. 

of  official  indices  and  records,  74. 

of  abstract  by  counsel,  615. 
EXCEl-TIONS, 

distinguished  from  reser\-ations,  197. 

how  created  and  shown,  198. 
EXECUTION, 

of  judgments,  490. 

sales  under,  effect  of,  491. 


INDEX.  683 


EXECCTION.     Continued. 

must  confoiTQ  to  judgiiiont,  494. 

levy  of,  how  made  and  retuined,  495. 

of  deeds,  formalities  required,  203. 

of  deed  of  corporation,  279. 

of  deed  of  attorney  in  fact,  287. 
EXECUTION  SALES, 

defined  and  distinguished,  490. 

validitj-  and  effect  of,  491. 

purchaser  at,  takes  subject  to  all  equities,  493. 

title  under,  extends  to  what,  493. 

title  vests  under,  when,  494. 

dependent  on  validity  of  writ,  494. 

as  effected  by  levy,  495. 

notice  of,  how  given,  496. 

affected  how  by  death,  498. 

exemptions  from,  499. 
EXECUTION  OF  DEEDS, 

consists  of  what,  203. 

various  parts  of,  how  shown,  203. 
EXECUTORS  AND  ADMINISTRATORS, 

nature  of  power  held  by,  316. 

deeds  and  conveyances  by,  316,  317. 

with  will  annexed,  powers  of,  320. 

devises  to,  in  trust,  431. 
EXEMPTION, 

inquiry  concerning,  should  bo  made  when,  499. 
EXPRESS   TRUSTS, 

for  what  purixjses  created,  18. 
EXTENT  OF  SEARCH, 

in  compiling  abstract  of  title,  93. 

FEE  SIMPLE, 

eytate,  signifies  what,  16. 
FIELD  NOTES, 

of  government  surveys,  iinportanco  of,  80. 
FL^VWS, 

in  title,  of  what  consisting  and  how  remedied,  634. 
FORECLOSURE, 

of  mortgage,  general  ol»8orvationH,  405,  543. 

of  mortgage,  by  advertisement,  311,  395,  396. 

pro<jf  of  title  under,  405. 

of  mechanicH*  Vu-nn,  462. 

a<;tion»  of,  how  hIiowu  in  al»stract,  543. 
FOREION   PROH.VTE, 

eir«'Ot  of,  and  how  hIiowii,  4  17. 

FORFKrnui:. 

di-liiit  li  and  (liHtinguiHhfd,  (V). 

for  non-payment  of  Iuxi-h,  how  Khown,  559. 


OSt  INDEX, 

Fx'JAMTNG  OPINIONS, 

general  remarks  upon,  043. 
FRAUDULENT  CONVEYANCES, 

considered  with  respect  to  abstracts  thereof,  254. 

GENERAL  LAND  OFFICE, 

records  of,  when  recourse  must  be  had  to,  157. 
GOVERNMENT  SUitVEYS, 

character  and  effect  of,  80. 
GRADUATION  ENTRIES, 

of  pubUe  lands,  how  effected,  120. 

IIABENDmi, 

of  deeds,  office  of,  197. 
HALF  BLOOD, 

children  of,  pai'ticipate  equally,  579. 
HEIRS, 

%''ho  are,  30, 

conveyances  by,  effect  of,  37,  285. 

post  obit  conveyances  by,  effect  of,  280. 

entitled  to  representation,  when,  577. 

liability  of  for  ancestral  debts,  581. 

must  establish  death  of  ancestor,  580. 

must  prove  birth  and  legitimacy,  590. 
HEIRSHIP, 

defined,  30. 

proof  of,  how  made,  30,  584. 

effect  of  conveyances  by  vutue  of,  37. 

rights  and  privileges  of,  575. 

dependent  on  fact  of  death,  580. 

accrues  only  to  lawful  issue,  590. 
HOMESTEAD, 

right  of  in  United  States,  20. 

consists  of  what,  21. 

entries,  under  U.  S.  land  laws,  122. 

mortgages  of,  how  made,  389. 

exempt  from  lien  of  judgment,  480. 

when  mquiries  as  to,  should  be  made,  041. 
HOMESTEAD  ENTRIES, 

of  public  lands,  nature  of,  122. 

rights  acquired  by,  124. 
HUSBAND  AND  WIFE, 

conveyances  to,  effect  of,  201. 

conveyances  between,  203. 

not  heirs  to  each  other,  580. 

DIPLIED  COVENANTS, 

in  leases,  what  are,  350. 

from  words  of  grant,  what  are,  191,  233. 
INCEPTION  OF  TITLE, 

presentation  of  different  measures  of,  109. 


INDEX.  685 


INCOME  OF  REALTY, 

gift  of  income  of,  passes  land,  423. 
IXCUMBRAN'CE, 

conveyances  subject  to,  effect  of,  254. 

when  grantee  becomes  liable  for,  255. 
INDENTURE, 

defined  and  distinguished,  230. 
INDETERMINATE  DEVISE, 

construction  of,  427, 
INDEXES, 

official,  in  public  offices,  74. 

grantor  and  grantee,  74. 

plaintiff  and  defendant,  76. 

to  public  records,  not  a  part  of  same,  75, 

importance  of  in  abstract  making,  78. 

inutility  of  "  patent "  forms  of,  78. 

of  government  tract  book,  79. 

of  field  notes  of  government  surveys,  SO. 

books  of  original  entr}',  81. 

of  document  numbers,  82. 

suggestions  for  form  of  entries  in,  83. 

of  tracts  and  parcels,  83. 

of  iiTegular  instruments,  85. 

of  tax  sales  and  redemptions,  86. 

of  names,  88. 

method  of  laying  out  and  keeping,  88. 

scale  for  paging,  89, 
INHERITANCE, 

words  of,  in  deeds,  192. 

as  affected  by  rule  in  Sholly's  case,  193. 

not  di 'pendent  on  seizin,  574. 

right  of  in  case  of  adoption,  35. 
INJUNCTIONS, 

should  be  shown  in  abstract,  when,  533. 
INQUIRIES  IN  PAIS, 

to  dem(;ristratL'  adverse  possession,  605. 

to  show  fact  of  dcatli,  5^7, 

to  prove  birth  and  marriage,  590. 
IN.SOLVENCY, 

vohmttiry  assignments  and  bankruptcy,  320. 
INSPK<TION, 

of  rc'onlK.  right  f)f,  63. 
INTERNAL  IMl'ROVEMENT  CRANTS, 

for  wliat  pur|KJHWi  made,  131. 

nature  of  titlu  conferral  by,  131. 

'I'.w  Hhown  in  aljwtruct,  130. 
INT.SrATE. 

l»r.<|«jrty  Higniflos  what,  573. 


QSQ  INDEX. 

INTRODUCTORY, 

roinarks  concerning  alwtracts,  1. 

statements  in  abstract,  135. 
IRREGULAR  INDEX, 

how  compiled  and  vised,  85. 
IRREGULAR  INSTRUMENTS, 

method  of  compiling  index  for,  85,  104. 

how  shown  in  abstract,  104,  359. 
ISLANDS, 

ownership  of  and  rules  for  division,  49. 

JOINT  TENANCY, 

land  is  held  by,  when,  263. 
JUDICIAL  SALES, 

defined  and  distinguished,  490. 

differ  from  execution,  how,  491. 

validity  and  effects  of,  500. 

title  under,  how  construed,  501. 

rights  of  purchaser  at,  502. 

purchaser  may  be  compelled  to  take  title  under,  when,  503. 

must  be  confirmed  to  pass  title,  503. 

certificate  of,  how  shown  in  abstract,  506. 

proof  of  title  imder,  how  made,  508. 
JUDGMENTS, 

defined  and  distinguished,  470. 

operation  and  effect  of,  471. 

extent  and  duration  of  lien  of,  471,  473. 

priority  of,  474. 

lien  of  attaches  to  after-acquired  property,  476. 

former  requisites  of,  476. 

how  shown  in  abstract,  477. 

doctrine  of  subrogation  as  applied  to,  478. 

satisfaction  and  discharge  of,  479. 

against  deceased  person,  effect  of,  480. 

exemptions  from  lien  of,  480. 

errors  and  defects  in,  how  treated,  485, 

extra-territorial  effect  of,  489. 

sales  under,  490. 
JUDGMENT  INDEX, 

of  examiner,  how  compiled  and  used,  87. 

LAND  CONTRACTS, 

relation  of  parties  under,  342. 

operation  and  effect  of,  342. 

nature  and  requisites  of,  343. 

as  affected  by  recording  acts,  344. 

construction  of,  344. 

how  shown  in  abstract,  345. 

assignment  of,  operation  and  effect,  846. 


INDEX.  687 

LAND  CONTRACTS.     Continued. 

performance  of,  suffieiencj'  of  deed  and  title  under,  847. 

when  forfeited,  effect  of,  349. 

in  form  of  bond,  effect  of,  350. 
LAND  GRANTS  TO  R.VILROADS, 

how  made,  and  title  conferred  by,  133. 
LAND  MEASURES, 

tables  of,  in  common  use,  GGl. 

used  in  Spanish-Frencli  grants,  663. 

used  in  Spanish- Jlexitiin  grants,  664. 

used  in  Texas,  667. 
LAND  SCRIP, 

for  what  issued  and  to  whom,  126. 

location  of  public  land  under,  127. 
LAYING  OUT  BOOKS, 

suggestions  in  regard  to,  88. 
LEASES, 

nature  and  requisites  of,  352. 

formal  requisites  of,  353. 

how  shown  in  abstract,  354. 

effect  of  covenants  and  conditions  in,  355. 

covenants  in  are  implied  wlien,  356, 

of  agricultural  lands,  effect  of,  357. 

assignments  of,  357. 
LEGAL  MEMORY, 

periods  of,  liow  fixed,  47. 
LEGISLATIVE  GRANTS, 

nature  and  effect  of,  147. 

rules  of  construction  relating  to,  149. 

formal  requisites  of,  150. 

how  shown  in  abstract,  151. 
LETTERS, 

or  private  correspondence  may  be  shown  in  abstract,  wlien,  368. 
LETTER  PRESS  COPIF.S, 

of  al)Stract,  should  be  taken  by  examiner,  lUQ. 
LICENSE, 

distinguished  from  easement,  26. 
LIENS, 

general  doctrines  of,  452. 

how  created  and  exhibited,  453. 

creaU'd  by  official  bonds,  450. 

by  rew^Tvations  in  deeds,  457. 

in  aid  of  mechanics,  45'J. 

attacl)  to  what  CHtat*.-  or  ititerest,  400. 

limitation  of,  461. 

of  tiixf-tt,  utt;u  li  wlien,  553. 

of  credit<<rH  may  defeat  hucciiwjon  of  hi-ir,  ."583. 


6S8  INDEX. 

LIMITATION  AND  PRESCRIPTION, 

doctrine  of.  47. 

titles  founded  upon.  47. 
LIMITATION, 

and  purchase,  words  of,  193,  417. 

of  estate,  how  created,  421. 

of  liens  of  mechanics  and  otliers,  4G1. 
LIMITATION,  WOKDS  OF, 

enijiloj'ed  in  deeds,  193. 

used  in  leases  or  creation  of  lesser  estates,  354, 

how  affected  by  the  rule  in  Shelly's  case,  193,  417. 
LLS  PENDENS, 

general  doctrine  of,  463,  465. 

filing  of  notice  of,  75,  465. 

how  shown  in  abstract,  466. 

MAP, 

of  towTiship  subdivision,  168. 

of  sectional  subdivision,  169,  171. 
MARGINAL  DISCHARGE, 

of  mortgage,  effect  of,  404. 
MARGINAL  NOTES, 

how  employed  in  examination  of  abstract,  620. 
]\L\RKETABLE  TITLE, 

elements  which  constitute  a,  632. 
MARRIAGE  SETTLEMENTS, 

legal  effect  of,  260. 
MARRIED  WOMAN, 

conveyances  by,  how  made,  264. 

effect  of  conveyances  by,  266. 

formal  requisites  of  conveyances  by,  267. 

release  of  dower  by,  267. 

abstract  of,  269. 

devise  to,  consti'uction  of,  430. 
MASTERS, 

certificate  of  sale,  how  shown. 

reports,  how  shown,  530. 
MASTERS'  DEEDS, 

operation  and  effect  of,  304. 

how  shown  in  abstract,  305. 
MEANDER  LINES, 

how  run  and  for  what  purpose,  173. 
MECHANICS'  LIENS,    , 

nature  and  effect  of,  459. 

rules  with  respect  to  priority  of,  459. 

attach  to  what  estates,  400. 

limitation  of,  464. 

foi'edosuro  of,  462. 

should  be  detected  by  inquiries  in  vais,  when,  639. 


INDEX.  689 


MERGER, 

general  doctrine  of,  377. 
MILITARY  WARRANTS. 

location  of  public  lands  luider,  125. 
mSDESCRIl^TION, 

of  parties  to  deeds,  216. 

of  lands  in  deeds,  220. 
MORTGAGES, 

defined  and  distinguished,  372. 

rights  of  parties  under,  374,  375. 

as  affected  by  estoppel,  376. 

doctrine  of  merger  applied  to,  377. 

deeds  absolute  may  be  decreed  to  be,  when,  379. 

how  shown  in  abstract,  383,  389,  394. 

statutory  forms  of,  384. 

erroneous  description  in,  384. 

effect  of  covenants  in,  385, 

effect  of  informality  in,  387. 

when  for  purchase  money,  effect  of,  388. 

of  the  homestead,  how  made,  389. 

of  after-acquired  property,  390. 

how  affect<?d  by  recording  acts,  391. 

re-records  of,  how  treated,  393, 

trust  deeds  in  nature  of,  393. 

power  of  sale  in,  how  shown,  395. 

sale  under,  by  virtue  of  power,  396. 

assignment  of,  how  made,  398. 
operation  and  effect  of,  399. 

formal  requisites  of  assignment  of,  400. 

releast-s  of,  how  made,  401,  402. 
by  trustee,  403, 
on  margin  of  record,  404, 

foreclosure  of,  how  made,  405. 
proof  of  title  under,  405. 

mort:siain, 

statutes  of,  how  far  recfignized,  275. 
MUNICIPAL  ORDINANCES, 

should  be  shown  in  al»straft,  when,  360. 
operation  and  effert  of,  302. 
and  resolutions,  363. 

NAVIGABLE  WATERS, 

what  are,  50. 

in<id<'nt«  of  land  iKniiiding  up(jn,  48. 
NEW  EN(;LAND  AUSTRACi'S, 

metliod  of  compilation  of,  007. 
NON-CLAIM. 

deed  of,  what  iw,  239. 
44 


// 


690  INDEX. 

NOTARY, 

must  affix  seal  to  oflicial  certificate,  207. 

certificate  of,  when  defective,  224. 

may  not  acknowledge  to  self,  227. 
NOTE-TAKING, 

utility  of,  considered,  614. 
NOTICE, 

general  doctrines  of,  67,  380. 

consti'uctive,  effect  of,  67,  639. 

constructive,  decree  rendered  upon,  482. 

actual,  effect  of,  69. 

lis  2^enilens,  how  shown  in  abstract,  455,  465. 

of  mechanic's  lien,  459,  639, 

of  sale,  under  execution,  how  shown,  496. 

afforded  by  chancerj'  records,  522. 

of  easement  or  servitude,  640. 

imparted  by  possession,  393,  605,  638. 
NUNCUPATIVE  WILLS, 

or  oral  declarations  not  sufficient  to  transfer  real  estate,  403. 

OCCUPANCY, 

natme  and  extent  of  rights  acquired  by,  53. 
OFFICIAL  CONVEYANCES, 

defined  and  distinguished,  297. 

nature  and  effect  of,  298. 
OFFICIAL  AIDS  TO  SEARCH, 

what  are  and  how  consulted,  74. 
OPINIONS  OF  TITLE. 

general  remarks  concerning,  612. 

aids  in  rendering,  624,  630. 

how  framed,  643,  645,  649. 

clearness  of  expression  essential  in,  651. 

by  oral  communication,  652. 

erroneous  liability  of  counsel  for,  653. 
ORAL  OPINIONS, 

undesirability  of,  652. 
ORDER, 

for  examination  of  title,  form  of,  107. 

of  pixblication  for  constructive  service,  529. 

of  confirmation,  in  judicial  sales,  503. 
ORDINANCES, 

of  cities  and  towns,  when  necessary  to  be  shown,  300. 

practical  example  of  abstract  of,  361. 

operation  and  effect  of,  362. 
ORIGIN, 

of  abstracts,  speculations  upon,  2. 
ORIGINAL  ENTRY, 

in  abstract  books,  how  made,  81, 

suggestions  as  to  form  of,  83. 


INDEX.  601 

PARTIES, 

to  deeds  and  other  instruments,  183. 

names  of,  how  displayed  in  abstract,  184. 

defects  or  errors  respecting,  how  shown,  216. 

to  land  contracts,  relation  of,  343. 
PARTITION, 

effect  and  nature  of,  270,  537. 

deed  of,  how  shown,  271. 

proceedings  for,  how  sho%vn  in  abstract,  539. 
PARISH   RECORDS, 

are  competent  as  evidence,  77. 
PARTNERS, 

lands  held  by,  how  regarded,  271. 

conveyances  by,  272. 
PARTY  WALLS, 

agreements  for,  effect  of,  366. 
PATENTS, 

defined  and  distinguished,  153. 

formal  recjuisites  of,  154,  161. 

operation  and  effect  of,  154,  158. 

registration  of — general  land  office  record,  157. 

construction  of,  160. 

how  shown  in  abstract,  162. 

from  the  state,  effect  and  construction  of,  162. 

formal  requisites  of,  165. 
PATENT  SYSTEMS, 

for  compiling  abstracts,  observations  upon,  78. 
PERFORMANCE, 

of  contract  to  convey,  sufficiency  of  deed  and  title,  347. 
PERPETUITIES, 

attempts  to  create  same  void,  434. 
PERUSAL  OF  ABSTRACT, 

general  suggestions  for,  612, 

utility  of  notes  as  an  aid  to,  614 

analytical  chains  used  in,  624. 

ase  of  sketch  maps,  630. 

preservation  of  memoranda  employed  in,  631. 

inquiries  in  pais  should  be  directed,  when,  037. 
PEDIGREE, 

to  prove  heirship,  example  of,  593. 
PLATS, 

of  public  surveys,  how  made,  166. 

of  private  surveys  and  subdivisions,  174. 

formal  re<iuiHitt«  of,  175. 

Iujw  hhown  in  alwtract,  177. 

cfTcct  of  registration  of,  177. 

vacation  and  canctllalinn  of,  178. 


(»lt2  INDEX. 

PLATS.     Continued. 

dedication  b}',  effect  of,  179. 

by  assessor  in  tax  proceedings,  036. 
POST  OBIT  CONVEYANCES, 

effect  of,  280. 
POWERS, 

definition  of ,  19. 

obtain  to  what  extent  in  United  States.  19. 

of  disposition  to  liolder  of  life  estate,  43-4. 
POWERS  OF  ATTORNEY, 

general  doctiine  of,  288. 

how  shown  in  abstract,  290. 

revocation  of ,  291. 
POWER  OF  SALE, 

distinguished  from  trust  of  sale,  308. 

intrust  deeds,  how  exercised,  311,  315. 

how  shown  in  abstract,  313. 
PRECATORY  TRUSTS, 

what  are  and  how  created,  433. 
PRE-EMPTION  ENTRIES, 

of  public  lands,  how  effected,  116. 

natui'e  of  title  conferred  by,  114,  118. 

what  lands  subject  to,  116. 

conveyances  made  before,  effect  of,  119, 

abstract  of,  from  government  tract  book,  135. 
PREFERENCES, 

among  heirs,  rules  of,  577. 
PRESCRIPTION, 

is  founded  on  what  presumptions,  47. 

effect  of  on  title,  47. 

limited  by  what  fixed  periods,  48. 

and  adverse  possession,  604,  610. 
PRESERVATION, 

of  memoranda  of  counsel,  631. 
PRIMOGENITURE, 

right  of,  not  recognized  in  United  States,  577. 
PRINTED  COPIES, 

of  abstracts,  opinions  concerning,  641. 
PRIVATE  LAND  CLAIMS, 

what  are,  171. 
PROBATE  PROCEEDINGS, 

in  respect  to  wills  and  testamentary  papers,  446,  520. 

of  wills,  how  shown  in  abstract,  445,  448. 

in  foreign  jurisdiction,  how  shown.  447. 

operation  and  effect  of  decrees  in,  488. 

in  intestacy,  how  shown  in  abstract,  515. 

to  show  death  and  heii-ship,  593. 


INDEX.  C03 


PROBATE  SALES, 

validity  and  etfect  of,  511,  520. 

nature  and  re<iuLsites  of,  513. 

how  shown  in  abstract,  514. 
PROCESS, 

ofllce  and  formalities,  5"33. 

service  of.  how  made.  505. 

proof  of  service  of.  how  shown,  526. 
PROHIBITED  CONVEYANCES, 

former  and  present  state  of  law  respecting,  253. 
PROOF, 

of  conveyance  by  official  certificate,  364. 

of  title  under  foreclosure  of  mortgage,  405. 

of  publication,  notice  of  sale,  497. 

of  title  under  judicial  and  execution  sales,  508. 

of  service  of  summons  in  legal  actions,  526. 

of  heirship,  how  effected,  30,  584. 

of  death,  37,  586. 

of  birtli  and  legitimacy,  590. 

to  PU}>port  title  by  adverse  possession,  611. 
PCBLIC  LANDS, 

system  of  disposal  of,  109,  111, 

public  sales  of,  112. 

private  entrj-  of,  113. 

subject  to  private,  what  are,  116. 

pre-emption  entities  of,  116,  118. 

graduation  entries  of,  120. 

donation  entries  of,  121. 

entries  of,  under  homestead  laws,  123. 
under  desert  land  act,  124. 
under  tree  claim  act,  125. 

location  of  by  military  warrant,  125. 
by  U.  S.  land  scrip,  126. 

selections  of  under  swamp  land  grants,  128. 

dlsiKjsal  of  in  aid  of  education,  130. 

and  internal  improvements,  131,  132. 

who  may  ac()uire  title  to,  133. 

incejitive  title  to,  how  uliown  in  abstract,  133. 

town  site  entries  upon,  141. 

survey  and  divi.sion  of  under  U.  S.  land  laws,  100. 
PUBLKJ  "(JliANT, 

title  l»y.  what  is,  40. 

synoimis  of,  in  alwtract,  135. 
PUBLIC  SURVEYS, 

Ijow  exeeut***!  an<i  retunnd,  106. 

publicatkjn, 

constructive  Hcrvice  by,  effect  of,  528. 


G9i  INDEX. 

PUBLICATION.     Contimicd. 

of  summons,  afTulavit  and  order  for,  529. 
PURCHASE, 

title  by,  defined,  39. 
PURCHASER, 

may  require  to  be  furnished  with  abstract,  when,  9,  11. 

abstract  becomes  property  of,  when,  11. 

must  see  to  application  of  purchase  money,  when,  308. 

at  official  sale,  as  charged  with  notice  of  what  defects,  315. 

at  execution  sale,  takes  what  title,  493. 

trustee  can  not  become,  of  trust  estate.  323, 

QUALIFICATIONS, 

of  examiner  of  titles,  6. 
QUIA  TIMET, 

effect  of  on  title,  536. 
QUIT-CLAIM  DEEDS, 

legal  import  of,  235, 

how  shown  in  abstract,  237. 

effect  of  covenants  in,  238. 

RECEIVER'S  RECEIPT, 

issued  at  tune  of  entry,  113. 

does  not  constitute  evidence  of  title,  142. 

how  shown  in  abstract,  143. 
RECITALS, 

in  deeds,  how  shown  in  abstract,  196. 

effect  of  in  official  deeds,  298,  300. 

in  tax  deeds,  567. 
RECORDS, 

consist  of  what,  62. 

depositories  of,  63. 

right  of  inspection  and  copy  of,  63. 

afford  constructive  notice,  when,  67. 

loss  or  destruction  of,  73. 

when  abstract  may  supply  the  place  of,  73. 

as  aids  in  real  estate  examinations,  74. 

of  church  or  parish,  effect  of,  76. 

of  United  States  land  entries  when  kept,  79. 

of  government  surveys,  effect  of,  80. 

of  general  land  office,  157. 

of  mortgages,  impart  notice  of  what,  391. 

of  chancery  proceedings,  517. 
RECTANGULAR  SURVEYING, 

exposition  of  the  system  of,  172. 
REDEMPTION, 

fact  of  should  be  noted  on  index,  equity  of,  of  what  consisting,  374. 

from  judicial  sales,  542. 

from  tax  sale,  how  shown  in  abstract,  562. 


INDEX.  G05 


REGISTRATION, 

American  doctrine  of,  70. 

general  mles  regarding,  71. 

etl'ect  of  not  abi-ogated  by  destruction  of  record,  73. 

of  patents  from  United  States,  157. 

of  plats  and  subdivisions,  effect  of,  177. 

of  deeds,  how  noted  in  abstract,  188. 

raises  of  pi-esumption  of  delivery,  when,  211. 

of  mortgagt.^,  effect  of,  391 . 

of  death  certificate  when  evidence  of  fact,  588. 
RELATION, 

doctrine  of,  expounded,  46. 

of  parties  under  land  contracts,  343. 
RELEASE, 

as  a  substantive  mode  of  conveyance,  242. 

of  dower  by  wife,  267. 

of  mortgage,  form  and  requisites  of,  401. 

how  shown  in  abstract,  402. 

of  mortgage  by  ti'ustee,  403. 

of  mortgage  on  mai"gin  of  record,  404. 
RELICTION, 

defined,  48. 

title  to  land  acquired  by,  49. 
RELIEF  ACTS, 

how  shown  in  al)stract,  15, 
RELINQUISHMENT, 

considered  as  method  of  passing  title,  54. 
REMAINDER, 

definition  of,  17. 

estate  in,  will  be  rai.sed  when,  421. 

contingent,  limitation  of  in  wills,  429. 
REMAINDER-MAN, 

adverse  p  )ssession  will  not  lie  against,  607. 
REPRESENTATION, 

right  of,  among  heu"8,  577. 
REPUGNANCY, 

in  deeds,  by  what  rule  governed,  228. 

in  wills,  how  cotistnicd,  413. 
REQUISITIONS  FOR  TITLE, 

nindu  by  counsel  on  examination,  020. 

answers  to,  022. 

of  what  f  onsi-sting,  023. 
RE-ltECOItDS, 

how  shown  in  alwtraot,  258. 
of  iiiortKJ'g''.  how  shown,  3!J3. 

reskkvatkjn, 

diHtiiigtiished  frf)tii  exception,  197. 
how  created  and  shown,  19b. 


09G  INDEX. 

R?:SIDUARY  DEVISEE, 

when  charged  with  testator's  debts,  43G. 
RESIGNATION, 

of  trustee  will  not  divest  the  trust,  296. 
RESOLUTIONS, 

of  municipal  boards,  should  be  shown  when,  302. 
RESTRAINT  OF  MARRIAGE, 

imposed  by  will,  validity  of,  428. 
RESTRICTIONS, 

insei-ted  m  conveyances,  effect  of,  200,  251. 
RESULTING  TRUSTS, 

general  doctrine  of,  257. 
REVOCATION, 

of  power  of  attorney,  how  made,  289,  291. 
RIPARLIN  TITLES, 

nature  and  incidents  of,  48,  50. 
ROOT  OF  TITLE, 

of  what  consisting,  145. 
RULES, 

for  division  of  land  acquired  by  accretion,  49. 

of  descent,  31,  576. 

for  land  measm-ement,  C60. 

SALES, 

of  public  lands,  how  made,  113. 

in  pm-suance  of  judgments  and  decrees,  490. 

in  probate,  511,  513. 

for  non-payment  of  taxes,  557,  559. 
SATISFACTION, 

of  moi'tgage  distinguished  from  release,  401. 

form  and  requisites  of,  401. 

how  shown  in  abstract,  402. 

of  liens  and  charges  generally,  453. 

of  judgment,  how  shown,  479. 
SCALE, 

for  indexing  abstract  books,  89. 

of  land  measures  in  United  States,  661. 
SCHOOL  LANDS, 

method  of  donation  of,  130. 

grant  of,  how  shown  in  abstract,  138. 
SEALS, 

effect  of,  when  affixed  to  deeds,  205. 

of-notai'ies  should  attest  acknowledgment,  207. 

SECTIONS, 

of  pubUc  land,  how  surveyed  and  subdivided,  169. 
diagi-ams  of,  169,  171. 
when  made  fractional,  170. 


INDEX.  697 


SERVICE. 

of  process,  how  mmlo  and  shown,  525. 

proof  of,  how  made,  HiG,  529. 
SHELLYS  CASE, 

rule  in,  effect  of,  193,  417. 
SHERIFFS  DEED, 

operation  and  effect  of,  299,  301. 

necessity  of  acknowled?;raent  of,  301. 

may  not  be  reformed  in  etiuity,  303. 

statutory  forms  of,  302. 

how  shown  in  abstract.  303. 

under  decree,  effect  of,  304. 

recitals  in,  when  material,  298. 
SIGNATURE, 

gives  efiScacy  to  conveyances,  203. 

how  indicated  in  absti-act,  204. 

in  execution  of  corporate  deeds,  279. 

to  deed  by  attorney  in  fact,  287. 
SOURCES  OF  TITLE, 

in  EIngland  and  the  United  States,  14. 

when  searcli  should  extend  to.  92,  145. 
SPECIFIC  PERFORMANCE, 

actions  for,  when  shown  in  abstract,  541. 
STAMI'S, 

when  required  and  how  indicated,  213. 
STATE  LANDS, 

by  what  title  held,  and  how  disposed  of,  141. 

sales  of,  how  sliown  in  abstract,  145. 

formal  requisites  of  patents  for,  165. 

effect  and  construction  of  patents  for,  103. 
STATUTORY  FORMS, 

of  deeds  and  conveyances,  240. 

of  slierifTs  deed,  302. 

of  mortgage,  effect  of,  384. 

of  tx\  deed.  507. 
SUBDIVISIONS, 

of  the  public  lands,  how  made,  100. 

of  sections,  169. 

e(Te<;t  of  in  .sulisj'ipunt  conveyances,  174, 

formal  rtnjuisites  of,  175. 

how  shown  in  al»stra<t,  170. 

by  ns.s^'ssors  for  Uixatioii,  550. 
SUIiSTI'lUTION, 

«»f  attorney  in  fact,  when  permitted,  291, 
SUIJROCJATION, 

general  doctrine  of,  478. 


098  INDEX. 

SUCCESSION, 

lino  of,  in  descent?,  32,  575. 

rules  of,  according  to  civil  law,  33. 

through  adoption,  roquues  wluat  to  be  shown,  30. 
SUMMONS, 

how  shown  in  alwtract,  524. 

service  of,  how  made,  525. 

proof  of  service  of,  526. 

service  of  by  publication,  how  shown,  529. 
SURRENDER, 

considered  as  form  of  conveyance,  243. 

how  shown  in  abstract,  244. 
SURVIVORSHIP, 

in  joint  tenancies,  doctrine  of,  2G9. 

presumjjtion  of,  in  case  of  disaster,  585. 
SURVIVING  CONSORTS, 

are  not  heirs  of  relict,  580. 
SWAMP  LAND  GRANTS, 

origin  and  history  of,  128. 

selection  of  public  land  under,  129. 
SYNOPSIS, 

of  instruments,  suggestions  for,  101. 

TACKING, 

of  adverse  claims,  doctrine  of,  605. 
TAX, 

definition  and  nature  of,  551. 

what  property  subject  to,  552. 

lien  of,  attaches  wlieii,  553. 

sale  for  non-payment  of,  how  affected,  557. 

TAXATION. 

subjects  of  the  burdens  of,  552. 

proceedings  incident  to,  550. 
TAX  ABSTRACT, 

caption  of,  98. 

should  show  what  matters,  571. 
TAX  DEEDS, 

validity  and  effect  of,  5G4. 

formal  requisites  of,  566. 

how  shown  in  abstract,  568. 

effect  of  as  evidence,  568. 

how  aided  by  limitation  and  possession,  570. 
TAX  INDEX, 

of  the  examiner,  how  compiled  and  used,  86. 
TAX  SALE, 

how  made  and  how  shown,  557. 

tax  payer  as  purchaser  at,  acquires  no  title,  5G0. 

rights  of  purchasei-s  under,  561. 


INDEX.  C99 

TAX  SALE.     Continued. 

redemption  from,  liow  shown,  5G3. 

certificate  of  purchase  of,  5G3. 

al)^^tracts  of,  how  compiled,  571. 
TAX  TITLE, 

nature  and  extent  of,  553,  555. 
TECHNICAL  ESTOPPEL, 

application  of  principles  of,  in  exammations  of  title,  43. 
TECHNICAL  PIIR.VSES, 

in  deeds,  effect  of,  219. 

in  wills,  how  construed,  418. 
TENANCIES, 

what  constitutes,  26. 
TENANTS  IN  COMMON, 

nature  of  the  estate  held  by,  269. 

deeds  by,  to  effect  partition,  270. 

when  partnei-s  will  hold  as,  271. 

statute  of  Ihnitations  does  not  run  as  between,  60S. 
TESTAMENTARY  TITLES, 

cliaracter  and  effect,  408,  409. 

formal  proof  of,  443,  445,  449. 
TIDE  WATERS, 

conunon  law  of,  not  applicable  in  United  States,  50. 
TITLE, 

distinguished  from  estate,  13. 

methods  of  acquisition  of,  13. 

how  classified,  13. 

derived  from  what  sources,  14. 

nature  of  in  United  Stjites,  15. 

allodial,  nature  of  estate  held  under,  16. 

color  of,  what  constitutes,  27. 

evidences  of,  27,  632. 

by  purchase,  define<i,  39. 

by  descent,  how  acquired,  30,  573. 

by  deed,  40. 

by  devLse,  40. 

by  pubhc  RTant,  40. 

acquire<l  t!irouf;li  a'vn-tion  or  roliction,  4^. 

to  lands  on  navi^;al>lf  waters,  incidt'iitw  uf,  48. 

derived  thn^u^^h  eminent  d(jmain,  57. 

by  e8ch«^t,  W. 

derive<l  tlirougli  (;onn.s<:ation,  59. 

proliminury  sUigiw  of,  109. 

inceptive  ineaxurcH  under  U.  S.  land  laws,  110. 

nature  of,  ronferre*!  by  jirivaU'  entry,  111. 

conferr<-<l  by  K<'"Tal  lawn,  120.  I2H.  130,  132. 

to  public  hind.H,  who  may  acquire,  133. 


700  INDEX. 

TITLE.     Confiuucd. 

acquired  by  shorili's  deed,  301. 

of  assignee  in  insolvencj-,  330. 

of  purchaser  at  execution  sale,  493. 

under  execution  sale,  rests  when,  494. 

luidor  judicial  sale,  500. 

purclia-ser  may  be  compolled  to  take,  when,  502. 

proof  of,  under  execution  and  judicial  sales,  oU8. 

derived  from  tax  sale,  503. 

acquired  by  adverse  possession,  590. 

opinions  of,  how  made,  612. 

aiiah'sis  of,  utility  m  examination,  G24. 

validity  of,  in  framing  opinions,  633. 

flaws  in,  how  obviated,  634. 

clouds  upon,  effect  of,  636. 
TOWNSHIP, 

how  surveyed  and  subdivided,  167. 

diagram  of,  168. 
TOWN  SITE  ENTRIES, 

how  made  and  for  what  purpose,  141, 

how  shown  in  abstract,  142. 
TRACT  BOOK, 

of  the  government  land  office,  79. 

of  the  examiner,  how  compiled,  83. 
TREE  CLAIMS, 

on  public  lands,  how  effected,  125. 
TRUSTS, 

for  what  purposes  permitted,  293. 

words  whifh  create,  293. 

declaration  of,  how  made  and  shown,  294. 

created  bj'  will,  431. 

precatory,  what  are  and  how  raised,  433. 
TRUSTEES, 

how  created,  292,  305,  431. 

declarations  by,  294. 

removal  or  substitution  of,  296. 

resignation  or  refusal  to  act  of,  296. 

transfers  of  legal  estate  by,  307. 

purchaser  must  see  to  appUcation  of  purchase  money  by,  when,  308, 
309. 

deeds  and  conveyances  by,  310,  394. 

may  not  purchase  trust  estate,  323. 

deeds  by  under  power  of  sale,  394. 

releases  by,  of  mortgaged  propei-ty,  403. 

in  testamentary-  conveyances,  317,  431. 

may  not  delegate  tiust  powers,  310,  318. 


ixPEx.  701 

TRUSTEES.     Colli  inucd. 
TRUST  DEEDS, 

character  and  efiFect  of,  292,  310. 

power  of  sale  in,  how  shown,  313,  396. 

in  nature  of  mortgage,  393. 

how  shown  in  abstract,  394. 
TRUST  OF  SALE, 

tlistuigiiished  from  power  of  sale,  308. 

UNITED  STATES, 

natm-e  of  title  to  land  in,  15,  109. 

estates  in  land  recognized  by,  17. 

being  the  sovereign  power,  not  affected  by  estoppel,  45. 

or  limitation,  except  when,  45. 

system  of  disposal  of  lands  of,  109. 
UNRECORDED  EVIDENCE, 

abstract  does  not  contemplate,  371 
USES  AND  TRUSTS, 

nature  of  in  United  States,  18. 

defined  and  distinguished,  18. 
USER, 

and  possession  will  supix)rt  claim  of  title  when,  G04. 

VACATION, 

of  plats  and  subdivisions,  178. 

how  shown  in  abstract,  179,  361. 

of  streets  and  public  roads,  301. 
VENDOR, 

not  recpiired  to  furnish  abstract  in  absence  of  contract,  9. 
VENDORS  LIENS, 

must  be  disclosfl  to  bind  third  parties,  381. 
VOLUNTARY  ASSIGNMENT, 

character  and  operation  of,  327. 

validity  of,  328. 

formal  rc<iui.sites  of.  329. 

construction  and  elTect  of,  331. 

conlliit  of  laws  relating  to,  331. 
VOWEL  INDEX. 

obJLct  and  method  of  u.se,  88. 

WARRANTY, 

covi'n.int  of,  extends  to  what,  201. 
of  title,  in  quit-cluim  deeds,  effoct  of,  239. 
against  acts  of  grantfjr  only,  clfect  of,  239. 
how  construed  in  statutory  forms,  210. 
iin'>!ii-<l  fro  n  w-.v  1h  of  grant,  191,  233. 

WARi.  \::tv  I)i:i:ds, 

leg  il  iiiii»ort  of,  '..'32. 

how  shown  in  abstract,  231. 

wii  .  ''■  .it. -I  covenant,  23'J. 


TU2  INDEX. 

WIFE,  - 

conveyances  to  ns  marrino^e  settlements,  260. 

conveyances  to,  and  to  husl)an(l,  elTect  of,  261. 

conveyances  to,  from  luisbanil,  263. 

conveyances  by,  to  stranger,  264. 

release  of  dower  by,  267. 

deed  of,  liow  acknowledged,  266. 
WILLS, 

agi'cements  for  conveyances  by,  351. 

general  doctrines  relating  to,  407. 

construction  and  operation  of,  411,  418. 

when  real  estate  will  pass  under,  420. 

limitations  and  remaindere  in,  421. 

contingent  remainders  created  by,  429. 

language  required  to  raise  trusts  in,  431. 

precatory  trusts  in,  how  expressed,  433. 

residuaiy  clause  in,   effect  of,  438. 

codicils  to,  effect  of,  439. 

formal  requisites  of,  440. 

abstract  of,  how  made,  441,  443. 

probate  of,  effect  of,  446. 

constniction  of  in  equity,  550. 
WITNESSES, 

to  deeds,  attestation  of,  how  shown,  206. 
WORDS, 

importing  technical  character,  418. 

wliich  pass  real  estate  in  wUls,  420. 
WORDS  OF  GRANT, 

what  are,  in  deeds,  191. 

and  wUls,  415. 
WORDS  OF  PURCHASE  AND  LIMITATION, 

of  what  consisting,  192. 

in  leases,  what  are,  354. 

in  wills,  general  rules  of,  415,  417. 

create  remainders,  when,  422. 


JXDEX  TO  FORMS. 


ABSTRACT, 

formal  captions  for,  95. 

general  examination.  95. 

special  examination,  98. 

examination  of  tax  title,  98. 

formal  conclusion  of,  107. 
ABSTRACT  INDICES, 

original  entry,  81. 

document  nimiber  index,  83. 

tract  index,  84. 

irregular  index,  85. 

judgment  index,  87. 

scale  for  indexing,  89. 
AFFIDAVIT, 

general  form  of,  360. 

of  matter  in  pais,  370. 

of  publication,  497. 
AGREEMENT, 

for  conveyance  by  deed,  345,  350, 

for  party  wall.  367. 
ANALYSISOF  TITLE, 

to  show  ownership,  625. 

to  trace  course,  629. 

English  mctliod,  659. 
ASSIGNMENT, 

by  register  in  bankruptcy,  336. 
ARR:VNGEMENT, 

of  abstract,  chain  of  title,  99. 
ATTACHMENT, 

proceo<lingH  in,  468. 

certificate  of,  469. 

BOND, 

for  deed,  350. 

CERTIFICATE, 

of  examination,  107. 

1703) 


704  INDEX   TO    FORMS. 

CERTIFICATE.     Contimied. 

of  conformity,  187. 

of  levy  (attachment),  469. 

of  sale  (execution),  506. 

of  sale  (judicial),  507. 

ofiicial,  365. 

of  proof  of  conveyance,  364. 

of  deatli,  589. 

of  proof  of  will,  445. 
CHANCERY  RECORDS. 

general  form,  531. 

in  special  cases,  539, 

notes  of,  divorce,  547. 
CONGRESSIONAL  GRANTS, 

act  of  Congi-ess,  reinstatement,  151. 

by  way  of  confirmation,  152. 
CORPORATE  CONVEYANCES, 

corporation  deed,  279, 

special  appended  matter,  281. 

showing  power  to  execute,  282. 

DECLARATION, 

of  vacation  of  plat,  179. 

of  trust,  295, 
DECREE, 

common  form,  485. 
DEEDS, 

wan-anty,  234, 

warrant}',  by  attorney,  287. 

wan-ant)',  special,  240, 

infuturo,  246, 

surrender,  common  law,  244. 

of  special  estates,  251. 

partition,  271, 

re-record  of,  258, 

by  corporation,  279. 

by  sheriff,  303, 

by  m.  aster,  305, 

by  tnistee,  311, 

by  administrator,  319, 

by  register  in  bankruptcy,  336. 

by  assignee,  337, 

by  county  clerk  (tax),  568. 

of  trust,  395, 

of  relinquishment,  269. 
DISCHARGE, 

in  bankruptcy,  340. 


INDEX    TO    FORMS.  705 


DISCHARGE.     Continued. 
on  margin  of  record,  404. 
of  judgments,  479. 

INDEX, 

of  original  entries,  81. 
of  document  uumlier  record,  83. 
of  land  ti-atts,  84. 
of  tax  sales,  87. 
of  judgments,  87. 
INITIAL  STATEMENTS, 

entry  at  govern  men  t  land  office.  1^5. 
donation  by  the  United  States,  137. 
cession  of  section  sixteen,  138. 
cession  of  lieu  lands,  138. 
receiver's  receipt,  143. 
commissionei"'s  receipt  (State  lixnds),  145, 

JUDGMENT. 

common  form.  477. 
satisfaction  of,  479. 

L.E.\SE, 

for  years,  3.54. 
LIS  PENDENS, 

notice  of,  466. 

M.VSTER'S, 

certificate  of  sale.  507. 

deed,  305. 
MORTGAGES, 

common  form.  383. 

to  secure  purciiase  money,  3^0. 

trust  deed,  in  natiu-e  of,  395. 

power  of  sale  in,  395. 

relejise  of,  402. 

marginal  disciiarge  of,  404. 

NEW  ENGLAND  ARSTKACTS, 

BampU',  658. 
NGTES. 

of  Bourfc  of  information,  235. 

of  imiM-rfcft  dt-sigiiatiou,  209,  216, 

of  «crtifi'iit<'  of  fnagislracy,  227. 

of  covenant  of  non-claim,  240. 

of  clianc<'ry  rc<ordH,  547. 

of  aflvcrm;  conveyanf^H,  597,  59S. 

of  prohat*'  of  will,  444. 
45 


Too  INDEX    TO    F(tKM3. 

NOTICE. 

lin  jn'iuh'na,  4C>(t. 
of  sale,  490. 

OFFICIAL  CONVEYANCES, 

sheriff's  deed,  303. 

master's  deed,  305. 

trustee's  deed,  311. 

administrator's  de(^d,  319. 

assignee's  deed.  337. 

county  clerk's  deed  (tax).  508. 
ORDER, 

for  examination  of  title.  107, 
ORDINANCE, 

of  municipality.  301. 
OPINION  OF  TITLE, 

based  on  personal  search.  045. 

based  on  the  abstract,  049. 

PATENTS, 

from  the  United  States,  103. 
POWER. 

of  attorney,  290. 

of  sale,  395. 
PROBATE, 

of  wills,  449. 

of  estate,  594. 

sales,  515. 
PROCEEDINGS, 

in  bankruptcy,  .834, 

in  probate  (will),  449. 

in  probate  (sale).  515. 

in  probate  (heirship),  594. 

in  chancery,  531. 

in  partition,  539. 

RECEIPTS, 

of  Receiver  U.  S.  Land  Office.  143. 

of  Commissioner  State  Lands,  145. 
RELEASE, 

of  dower,  209. 

of  mortgage.  402. 

on  mai-gin.  404. 
RE-RECORD, 

of  deeds,  258. 

of  lease.  258. 
SALE, 

notice  of,  490. 

certificates  of,  500,  507. 


INDEX    TO    FOKMS.  707 


SALES, 

in  bankruptcy,  3W. 

in  probate,  515. 

in  chancery,  507. 

untler  execution,  500. 
SHERIFFS  , 

certificate  of  sale,  506. 

d.'cl,  ms. 
SUBDIVISION, 

minutes  of  plat.  176. 

va<atiun  of,  179, 
SURRENDER, 

of  life  estate,  244. 

TAX  SALES, 

general  forms,  559. 

forfeiture,  560. 

certificate  of,  564. 
TRUST, 

declaration  of,  295. 

deed  in,  895. 

VACATION, 
of  plat,  179. 
of  street,  361. 

WILLS, 

coi union  form,  443. 
witli  special  jjrovisos,  449. 
proof  of,  378. 
probate  of,  449. 


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